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443 U.S. 713 99 S.Ct. 3088 61 L.Ed.2d 865 Marshall C. MOOREv.Jack P. DUCKWORTH, Warden. No. 78-5795. July 2, 1979. PER CURIAM. 1 Upon a plea of not guilty by reason of insanity, the petitioner was found guilty by an Indiana jury of murder in the second degree. The Indiana Supreme Court upon direct appeal affirmed the conviction. Moore v. State, 260 Ind. 154, 293 N.E.2d 28 (1973). The petitioner then sought a writ of habeas corpus in a Federal District Court pursuant to 28 U.S.C. § 2254. He claimed, inter alia, that he had been denied due process of law because he had been convicted upon evidence allegedly insufficient to prove beyond a reasonable doubt that he was sane at the time the victim was killed.* The District Court denied the writ, and the Court of Appeals for the Seventh Circuit affirmed. 581 F.2d 639 (1978). 2 In holding that the District Court had been correct in rejecting the petitioner's challenge to the sufficiency of the evidence supporting his conviction, the Court of Appeals stated that such a challenge presents a federal due process issue "only where a state court conviction is totally devoid of evidentiary support." Id., at 642. The petitioner claims that this was error, and he urges that under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), a state prisoner is entitled to a determination whether the record evidence could support a finding of guilt beyond a reasonable doubt. We agree. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Nonetheless, under the circumstances of this case we conclude that a remand for further consideration in light of Jackson v. Virginia would be inappropriate. 3 The petitioner has contended that the prosecution failed to meet its burden because it relied upon lay witnesses to prove sanity without providing any expert testimony to rebut his expert opinion testimony. But, as the Court of Appeals noted, under Indiana law sanity may be established by either expert or lay testimony. The state appellate court, in an opinion thoroughly discussing the record evidence and the petitioner's sufficiency challenge, concluded that the lay evidence in this case could have been credited by the jury, and it held that the State's evidence was fully sufficient to support a jury finding beyond a reasonable doubt that the petitioner was sane at the time of the killing. 4 The Court of Appeals properly deferred to the Indiana law governing proof of sanity. Although that court applied an improper legal standard when it considered the petitioner's due process claim, it is clear from its opinion that the essence of that challenge concerned the rule of state law that permits the State to rely on lay proof of sanity. It is likewise clear from the record that under the standard enunciated in Jackson v. Virginia, the evidence in support of this conviction was constitutionally adequate. 5 Accordingly, the writ of certiorari is granted, and the judgment of the Court of Appeals is affirmed. 6 It is so ordered. * The District Court found, and the Court of Appeals agreed, that the petitioner had failed to exhaust his available state remedies on all but his challenge to the sufficiency of the evidence. The petitioner takes issue with this ruling, but we are satisfied that it was correct.

01

444 U.S. 1 100 S.Ct. 7 62 L.Ed.2d 1 Richard Earl PILONv.Donald E. BORDENKIRCHER, Warden. No. 78-6932. Oct. 9, 1979. PER CURIAM. 1 The petitioner was convicted in a Kentucky court on a charge of first-degree manslaughter, and the judgment of conviction was sustained on direct appeal. Pilon v. Common- wealth, 544 S.W.2d 228 (Ky.1976). The petitioner then filed a habeas corpus petition in a Federal District Court, alleging that the Kentucky conviction was supported by evidence insufficient to afford him due process of law. The federal court denied relief. Applying the "no evidence" test of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), the court concluded that "[a]lthough this was a close case on the evidence, we believe that the case was not devoid of an evidentiary basis for petitioner's conviction."* The Court of Appeals for the Sixth Circuit, also relying on the "no evidence" test, affirmed the denial of habeas corpus relief. 593 F.2d 264. 2 Thereafter, this Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), held that the Thompson "no evidence" test is constitutionally inadequate in a case such as this. An earlier decision had made clear that the Due Process Clause of the Fourteenth Amendment prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Court in Jackson held that this constitutional requirement can be effectuated only if a federal habeas corpus court, in assessing the sufficiency of the evidence to support a state-court conviction, inquires "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S., at 319, 99 S.Ct., at 2789 (emphasis omitted). 3 It is thus beyond dispute that the District Court and Court of Appeals applied an incorrect and inadequate constitutional test in resolving the petitioner's due process claim that his state-court conviction rested on insufficient evidence. Although it is quite possible that the evidence against the petitioner will survive a challenge under the correct constitutional standard, he is entitled to have his application for habeas corpus considered under that standard. 4 The motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is vacated, and the case is remanded to the District Court for the Western District of Kentucky so that it may consider the petitioner's application for habeas corpus in the light of Jackson v. Virginia. 5 It is so ordered. * The opinion of the District Court is unreported.

01

444 U.S. 4 100 S.Ct. 16 62 L.Ed.2d 5 UNITED STATES et al.v.BENMAR TRANSPORT AND LEASING CORP. et al. No. 78-1602. Oct. 15, 1979. PER CURIAM. 1 This case is here on certiorari to the United States Court of Appeals for the Second Circuit, which set aside an order of the Interstate Commerce Commission authorizing respondent Consolidated Truck Service, Inc., to begin contract carrier service in competition with respondent Benmar Transport & Leasing Corp. The order, issued October 5, 1977, was defective because it lacked the statutorily required finding that it was consistent " 'with the public interest and with the national transportation policy,' [210] of the Interstate Commerce Act, 49 U.S.C. § 310 [now 49 U.S.C. § 10930(a) (1976 ed., Supp. II)]." Benmar Transport & Leasing Corp. v. ICC, 582 F.2d 246, 248 (1978). 2 The case was arqued in the Court of Appeals on July 17, 1978, and decided August 16, 1978. In reaching its decision, the Court of Appeals refused to consider two subsequent Commission orders that remedied the defect. The first of these orders, issued with the consent of all interested parties almost six months before oral argument in the Court of Appeals, reopened the administrative proceedings and made the finding required by 49 U.S.C. § 310. The second, issued on April 18, 1978, denied respondent Benmar's petition for administrative review of the former order. This denial became the Commission's final administrative order and had the effect of reaffirming its earlier decision to grant Consolidated's application for a contract carrier permit. Although the question briefed by the parties in the Court of Appeals was whether the order of April 18, 1978, was supported by the evidence, the Court of Appeals declined to examine the question on the ground that the only order properly before it was the defective order of October 5, 1977. It thus vacated the order and remanded the case for further proceedings. 3 We grant the petition of the United States and the Commission and reverse the judgment of the Court of Appeals. In American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970), this Court held that the Commission's broad powers to "reverse, change, or modify" its decisions "are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court." Id., at 541, 90 S.Ct., at 1293. (The applicable statute then provided for review of orders of the Commission by a three-judge District Court, rather than by the Court of Appeals.) Here the Commission's action did not interfere in any manner with the proceedings in the Court of Appeals, and the Commission acted before that court was ready to hear arguments on the merits and before it received the record. All parties concurred in the Commission's decision to reopen the proceedings and to hold judicial review in abeyance pending the Commission's final disposition of Benmar's petition for administrative review. The position of the parties—both those who prevailed and those who lost before the Commission—is convincingly demonstrated by the fact that no party has filed a brief in support of the decision reached by the Court of Appeals. 4 As the Court said in American Farm Lines, supra, "[t]he concept 'of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit' some statutory schemes, . . . but it does not fit this one." 397 U.S., at 541, 90 S.Ct., at 1293-1294. After the abolition of the "forms of action" in the early common law, it was said that "[t]he forms of action we have buried, but they still rule us from their graves." F. Maitland, The Forms of Action at Common Law 2 (1936). Orderly rules of procedure are necessary in order that appellate review may be had of agency findings, but empty formalities devoid of either substantive or procedural benefit have no place in the normal scheme for administrative review unless Congress chooses to place them there. Here Congress has quite clearly not chosen to impose such virtually meaningless requirements as the Court of Appeals insisted upon.* The judgment of the Court of Appeals is inconsistent with the spirit which animated American Farm Lines v. Black Ball Freight Service, supra, and is therefore 5 Reversed. 6 Mr. Justice MARSHALL, dissenting. 7 The Court today summarily reverses the judgment of the United States Court of Appeals for the Second Circuit setting aside an order of the Interstate Commerce Commission which concededly lacked a statutorily required finding. The Court takes this action because of two subsequent orders which the Commission issued after the petition for review had been filed with the Court of Appeals without seeking the permission of that court or taking any of the proper procedural steps. I dissent. 8 Since the procedural timetable involved in this case is important to the issue presented, it is necessary to set out more fully the proceedings below. Respondent Benmar Transport & Leasing Corp. filed a petition to review the order of the ICC with the Court of Appeals on January 13, 1978. There were no petitions for reconsideration still pending at that time. Thereafter, counsel for Benmar notified the ICC that the order was patently defective because of the lack of a statutorily required finding. The ICC on its own motion reopened the administrative proceedings on January 27, 1978, and made the necessary statutory finding. The parties then filed a motion in the Court of Appeals for an extension of time in which to file the record and briefs, and an extension was granted until March 8, 1978. Benmar filed an administrative petition for reconsideration and for reopening the ICC proceedings for receipt of new evidence on February 27, 1978. The reply to this petition was not filed with the ICC by respondent Consolidated Truck Service, Inc., until March 16, 1978—well after the deadline for filing the record and briefs with the Court of Appeals. Meanwhile, on March 7, 1978, the day before the record and briefs were due to be filed with the court, the ICC moved to have further judicial proceedings held in abeyance pending the Commission's disposition of Benmar's petition. Before the Court of Appeals could rule on this motion, the Clerk of that court was informed by Benmar's counsel that as an alternative to the motion to hold the action in abeyance Benmar intended to withdraw the petition for judicial review subject to reinstatement within 30 days after the disposition of the administrative petition. Benmar and the ICC attempted to draft a stipulation to that effect, but no stipulation was ever filed with the court. On April 18, 1978, the ICC denied Benmar's petition for reconsideration, thus making the January 27 order final. Benmar then filed an amended petition for judicial review, and a new schedule for filing the record and briefs had to be established by the court. 9 In light of this procedural history, it is astounding that the majority can assert that "the Commission's action did not interfere in any manner with the proceedings in the Court of Appeals, and the Commission acted before that court was ready to hear arguments on the merits and before it received the record." The ICC simply ignored the time limits established by the Court of Appeals and thereby prevented judicial review altogether. The Court of Appeals was not ready to hear argument and had not received the record solely because the ICC did not deign to comply with the scheduling orders of the court. The Commission did not even bother to move for a second extension. Such actions by a litigant should not be condoned by this Court.* 10 The case upon which the majority relies so heavily, American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970), is not controlling. In that case there was a multiparty proceeding before the ICC. Some carriers filed petitions for reconsideration before the Commission, but while those petitions were pending other carriers filed for judicial review. The District Court temporarily restrained operation of the ICC's original order but did not affect the pending administrative petitions. For those parties whose petitions were pending before the Commission, there was "no final action" and the ICC retained "jurisdiction to complete the administrative process." Id., at 541, 90 S.Ct., at 1294 (emphasis added). It was for this reason that "both tribunals have jurisdiction" of the matter. Ibid., quotingWrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 327, 248 F.2d 646, 649 (1957). This Court stressed, however, that the Commission "did not act inconsistently" with the court but rather had acted "in full harmony with the court's jurisdiction." 397 U.S., at 541-542, 90 S.Ct., at 1294. 11 This concurrent-jurisdiction concept is inapplicable in the present case. At the time the petition for judicial review was filed no petitions for reconsideration were pending before the ICC. The administrative proceedings were complete and the order was final as to all parties. In addition, as already noted, the ICC here did not act in full harmony with the jurisdiction of the Court of Appeals. Instead, the Commission through its actions simply forced the court to forgo the proper exercise of its jurisdiction until the ICC and the other litigants decided for themselves that they would file the record and briefs. The decision in American Farm Lines was not meant to give the Commission the power to stall judicial review. Contrary to the assertions of the majority, preventing the court from being effectively deprived of jurisdiction through the willful actions of litigants ignoring proper scheduling orders hardly constitutes "empty formalities." Since this Court today encourages the ICC to interfere with the proper exercise of jurisdiction of the Court of Appeals, I dissent. * The dissenting opinion makes the bald statement that "[t]he ICC simply ignored the time limits established by the Court of Appeals and thereby prevented judicial review altogether. The Court of Appeals was not ready to hear argument and had not received the record solely because the ICC did not deign to comply with the scheduling orders of the court." The opinion of the Court of Appeals, Benmar Transport & Leasing Corp. v. ICC, 582 F.2d 246 (1978), lends no support to this statement. Respondent Benmar petitioned the court to set aside the Commission's order but consented along with other interested parties to the reopening of the Commission proceedings before the record had been filed with the Court of Appeals or oral argument heard by that court. After the Commission completed these proceedings, it issued its final order of April 18, 1978—an order which was reviewable by the Court of Appeals pursuant to 28 U.S.C. §§ 2341-2349. The Court of Appeals thus was not deprived of its jurisdiction over this dispute. Rather, for no apparent reason other than to insist that the parties comply with an "empty formality," the Court of Appeals stated in its opinion that "when an agency seeks to reconsider its action, it should move the court to remand or to hold the case in abeyance pending reconsideration by the agency." 582 F.2d, at 248. If such action were necessary in order to avoid genuine interference "in any manner with the proceedings in the Court of Appeals," supra, at 5, we would have a different case. But since we conclude that there was no such interference, the mere fact that application for reopening was not made to the Court of Appeals was not fatal when all interested parties consented to such reopening. See American Farm Lines v. Black Ball Freight Service, supra. * In light of the conceded facts that after one extension the record and briefs were to be filed with the Court of Appeals by March 8, 1978, and that the ICC did not even render its revised final order until April 18, 1978, much less file the record and briefs, it does not require specific language in the lower court's opinion for this Court to be aware of the necessary conclusion that judicial review was delayed by the actions of the Commission. The majority's repeated assertion that there was no interference with the proceedings in the Court of Appeals simply ignores the procedural history below. The fact that Benmar consented to the ICC's actions does not change the fact that these litigants, like all other litigants, owe an obligation to the court not to delay judicial proceedings.

89

444 U.S. 11 100 S.Ct. 242 62 L.Ed.2d 146 TRANSAMERICA MORTGAGE ADVISORS, INC. (TAMA), et al., Petitioners,v.Harry LEWIS. No. 77-1645. Argued March 20, 1979. Reargued Oct. 2, 1979. Decided Nov. 13, 1979. Syllabus Respondent, a shareholder of petitioner Mortgage Trust of America (Trust), brought this suit in Federal District Court as a derivative action on behalf of the Trust and as a class action on behalf of the Trust's shareholders, alleging that several trustees of the Trust, its investment adviser, and two corporations affiliated with the latter, had been guilty of various frauds and breaches of fiduciary duty in violation of the Investment Advisers Act of 1940 (Act). The complaint sought injunctive relief, rescission of the investment advisers contract between the Trust and the adviser, restitution of fees and other considerations paid by the Trust, an accounting of illegal profits, and an award of damages. The District Court ruled that the Act confers no private right of action and accordingly dismissed the complaint. The Court of Appeals reversed, holding that "implication of a private right of action for injunctive relief and damages under the Advisers Act in favor of appropriate plaintiffs is necessary to achieve the goals of Congress in enacting the legislation." Held: 1. Under § 215 of the Act, which provides that contracts whose formation or performance would violate the Act "shall be void . . . as regards the rights of" the violator, there exists a limited private remedy to void an investment advisers contract. The language of § 215 itself fairly implies a right to specific and limited relief in a federal court. When Congress declared in § 215 that certain contracts are void, it intended that the customary legal incidents of voidness would follow, including the availability of a suit for rescission or for an injunction against continued operation of the contract, and for restitution. Pp. 18-19. 2. Section 206 of the Act—which makes it unlawful for any investment adviser "to employ any device, scheme, or artifice to defraud . . . [or] to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client," or to engage in specified transactions with clients without making required disclosures—does not, however, create a private cause of action for damages. Unlike § 215, § 206 simply proscribes certain conduct and does not in terms create or alter any civil liabilities. In view of the express provisions in other sections of the Act for enforcing the duties imposed by § 206, it is not possible to infer the existence of an additional private cause of action. And the mere fact that § 206 was designed to protect investment advisers' clients does not require the implication of a private cause of action for damages on their behalf. Pp. 19-24. 9th Cir., 575 F.2d 237, affirmed in part, reversed in part, and remanded. John M. Anderson, San Francisco, Cal., Mary Beth Uitti, Sacramento, Cal., for petitioners. Eric L. Keisman, New York City, for respondent. Ralph C. Ferrara, Washington, D. C., for the Securities and Exchange Commission, as amicus curiae, by special leave of Court. Mr. Justice STEWART delivered the opinion of the Court. 1 The Investment Advisers Act of 1940, 15 U.S.C. § 80b-1 et seq., was enacted to deal with abuses that Congress had found to exist in the investment advisers industry. The question in this case is whether that Act creates a private cause of action for damages or other relief in favor of persons aggrieved by those who allegedly have violated it. 2 The respondent, a shareholder of petitioner Mortgage Trust of America (Trust), brought this suit in a Federal District Court as a derivative action on behalf of the Trust and as a class action on behalf of the Trust's shareholders. Named as defendants were the Trust, several individual trustees, the Trust's investment adviser, Transamerica Mortgage Advisors, Inc. (TAMA), and two corporations affiliated with TAMA, Land Capital, Inc. (Land Capital), and Transamerica Corp. (Transamerica), all of which are petitioners in this case.1 3 The respondent's complaint alleged that the petitioners in the course of advising or managing the Trust had been guilty of various frauds and breaches of fiduciary duty. The complaint set out three causes of action, each said to arise under the Investment Advisers Act of 1940.2 The first alleged that the advisory contract between TAMA and the Trust was unlawful because TAMA and Transamerica were not registered under the Act and because the contract had provided for grossly excessive compensation. The second alleged that the petitioners breached their fiduciary duty to the Trust by causing it to purchase securities of inferior quality from Land Capital. The third alleged that the petitioners had misappropriated profitable investment opportunities for the benefit of other companies affiliated with Transamerica. The complaint sought injunctive relief to restrain further performance of the advisory contract, rescission of the contract, restitution of fees and other considerations paid by the Trust, an accounting of illegal profits, and an award of damages. 4 The trial court ruled that the Investment Advisers Act confers no private right of action, and accordingly dismissed the complaint.3 The Court of Appeals reversed, Lewis v. Transamerica Corp., 575 F.2d 237, holding that "implication of a private right of action for injunctive relief and damages under the Advisers Act in favor of appropriate plaintiffs is necessary to achieve the goals of Congress in enacting the legislation." Id., at 239.4 We granted certiorari to consider the important federal question presented. 439 U.S. 952, 99 S.Ct. 348, 58 L.Ed.2d 343. 5 The Investment Advisers Act nowhere expressly provides for a private cause of action. The only provision of the Act that authorizes any suits to enforce the duties or obligations created by it is § 209, which permits the Securities Exchange Commission (Commission) to bring suit in a federal district court to enjoin violations of the Act or the rules promulgated under it.5 The argument is made, however, that the clients of investment advisers were the intended beneficiaries of the Act and that courts should therefore imply a private cause of action in their favor. See Cannon v. University of Chicago, 441 U.S. 677, 689, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560; Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26; J. I. Case Co. v. Borak, 377 U.S. 426, 432, 84 S.Ct. 1555, 1559, 12 L.Ed.2d 423. 6 The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction. Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82; Cannon v. University of Chicago, supra, 441 U.S., at 688, 99 S.Ct., at 1953; see National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (Amtrak ). While some opinions of the Court have placed considerable emphasis upon the desirability of implying private rights of action in order to provide remedies thought to effectuate the purposes of a given statute, e. g., J. I. Case Co. v. Borak, supra, what must ultimately be determined is whether Congress intended to create the private remedy asserted, as our recent decisions have made clear. Touche Ross & Co. v. Redington, supra, 442 U.S., at 568, 99 S.Ct., at 2485; Cannon v. University of Chicago, supra, 441 U.S., at 688, 99 S.Ct., at 1953. We accept this as the appropriate inquiry to be made in resolving the issues presented by the case before us. 7 Accordingly, we begin with the language of the statute itself. Touche Ross & Co. v. Redington, supra, 442 U.S., at 568, 99 S.Ct., at 2485; Cannon v. University of Chicago, supra, 441 U.S., at 689, 99 S.Ct., at 1953; Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480; Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 24, 97 S.Ct. 926, 940, 51 L.Ed.2d 124. It is asserted that the creation of a private right of action can fairly be inferred from the language of two sections of the Act. The first is § 206, which broadly proscribes fraudulent practices by investment advisers, making it unlawful for any investment adviser "to employ any device, scheme, or artifice to defraud . . . [or] to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client," or to engage in specified transactions with clients without making required disclosures.6 The second is § 215, which provides that contracts whose formation or performance would violate the Act "shall be void . . . as regards the rights of" the violator and knowing successors in interest.7 8 It is apparent that the two sections were intended to benefit the clients of investment advisers, and, in the case of § 215, the parties to advisory contracts as well. As we have previously recognized, § 206 establishes "federal fiduciary standards" to govern the conduct of investment advisers, Santa Fe Industries, Inc. v. Green, supra, 430 U.S., at 471, n. 11, 97 S.Ct., at 1300; Burks v. Lasker, 441 U.S. 471, 481-482, n. 10, 99 S.Ct. 1831, 1839, 60 L.Ed.2d 404; SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 191-192, 84 S.Ct. 275, 282-283, 11 L.Ed.2d 237. Indeed, the Act's legislative history leaves no doubt that Congress intended to impose enforceable fiduciary obligations. See H.R.Rep.No.2639, 76th Cong., 3d Sess., 28 (1940); S.Rep.No.1775, 76th Cong., 3d Sess., 21 (1940); SEC, Report on Investment Trusts and Investment Companies (Investment Counsel and Investment Advisory Services), H.R.Doc.No.477, 76th Cong., 2d Sess., 27-30 (1939). But whether Congress intended additionally that these provisions would be enforced through private litigation is a different question. 9 On this question the legislative history of the Act is entirely silent—a state of affairs not surprising when it is remembered that the Act concededly does not explicitly provide any private remedies whatever. See Cannon v. University of Chicago, 441 U.S., at 694, 99 S.Ct., at 1956. But while the absence of anything in the legislative history that indicates an intention to confer any private right of action is hardly helpful to the respondent, it does not automatically undermine his position. This Court has held that the failure of Congress expressly to consider a private remedy is not inevitably inconsistent with an intent on its part to make such a remedy available. Ibid. Such an intent may appear implicitly in the language or structure of the statute, or in the circumstances of its enactment. 10 In the case of § 215, we conclude that the statutory language itself fairly implies a right to specific and limited relief in a federal court. By declaring certain contracts void, § 215 by its terms necessarily contemplates that the issue of voidness under its criteria may be litigated somewhere. At the very least Congress must have assumed that § 215 could be raised defensively in private litigation to preclude the enforcement of an investment advisers contract. But the legal consequences of voidness are typically not so limited. A person with the power to void a contract ordinarily may resort to a court to have the contract rescinded and to obtain restitution of consideration paid. See Deckert v. Independence Corp., 311 U.S. 282, 289, 61 S.Ct. 229, 233, 85 L.Ed. 189; S. Williston, Contracts, § 1525 (3d ed. 1970); J. Pomeroy, Equity Jurisprudence §§ 881 and 1092 (4th ed. 1918). And this Court has previously recognized that a comparable provision, § 29(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78cc(b), confers a "right to rescind" a contract void under the criteria of the statute. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 388, 90 S.Ct. 616, 623, 24 L.Ed.2d 593. Moreover, the federal courts in general have viewed such language as implying an equitable cause of action for rescission or similar relief. E. g., Kardon v. National Gypsum Co., 69 F.Supp. 512, 514 (E.D.Pa.1946); see 3 L. Loss, Securities Regulation 1758-1759 (2d ed. 1961). Cf. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 735, 95 S.Ct. 1917, 1925, 44 L.Ed.2d 539. 11 For these reasons we conclude that when Congress declared in § 215 that certain contracts are void, it intended that the customary legal incidents of voidness would follow, including the availability of a suit for rescission or for an injunction against continued operation of the contract, and for restitution.8 Accordingly, we hold that the Court of Appeals was correct in ruling that the respondent may maintain an action on behalf of the Trust seeking to void the investment advisers contract.9 12 We view quite differently, however, the respondent's claims for damages and other monetary relief under § 206. Unlike § 215, § 206 simply proscribes certain conduct, and does not in terms create or alter any civil liabilities. If monetary liability to a private plaintiff is to be found, it must be read into the Act. Yet it is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it. "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." Botany Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379. See Amtrak, 414 U.S., at 458, 94 S.Ct., at 693; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 419, 95 S.Ct. 1733, 1738, 44 L.Ed.2d 263; T. I. M. E., Inc. v. United States, 359 U.S. 464, 471, 79 S.Ct. 904, 908, 3 L.Ed.2d 952. Congress expressly provided both judicial and administrative means for enforcing compliance with § 206. First, under § 217, 15 U.S.C. § 80b-17, willful violations of the Act are criminal offenses, punishable by fine or imprisonment, or both. Second, § 209 authorizes the Commission to bring civil actions in federal courts to enjoin compliance with the Act, including, of course, § 206. Third, the Commission is authorized by § 203 to impose various administrative sanctions on persons who violate the Act, including § 206. In view of these express provisions for enforcing the duties imposed by § 206, it is highly improbable that "Congress absentmindedly forgot to mention an intended private action." Cannon v. University of Chicago, supra, at 742, 99 S.Ct., at 1981 (POWELL, J., dissenting). 13 Even settled rules of statutory construction could yield, of course, to persuasive evidence of a contrary legislative intent. Securities Investor Protection Corp. v. Barbour, supra, 421 U.S., at 419, 95 S.Ct., at 1738; Amtrak, supra, 414 U.S., at 458, 94 S.Ct., at 693. But what evidence of intent exists in this case, circumstantial though it be, weighs against the implication of a private right of action for a monetary award in a case such as this. Under each of the securities laws that preceded the Act here in question, and under the Investment Company Act of 1940 which was enacted as companion legislation, Congress expressly authorized private suits for damages in prescribed circumstances.10 For example, Congress provided an express damages remedy for misrepresentations contained in an underwriter's registration statement in § 11(a) of the Securities Act of 1933, and for certain materially misleading statements in § 18(a) of the Securities Exchange Act of 1934. "Obviously, then, when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly." Touche Ross & Co. v. Redington, 442 U.S., at 572, 99 S.Ct., at 2487; Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S., at 734, 95 S.Ct., at 1924; see Amtrak, supra, 414 U.S., at 458, 94 S.Ct., at 693; T.I.M.E., Inc. v. United States, supra, 359 U.S., at 471, 79 S.Ct., at 908. The fact that it enacted no analogous provisions in the legislation here at issue strongly suggests that Congress was simply unwilling to impose any potential monetary liability on a private suitor. See Abrahamson v. Fleschner, 568 F.2d 862, 883 (CA 2 1977) (Gurfein, J., concurring and dissenting). 14 The omission of any such potential remedy from the Act's substantive provisions was paralleled in the jurisdictional section, § 214.11 Early drafts of the bill had simply incorporated by reference a provision of the Public Utility Holding Company Act of 1935, which gave the federal courts jurisdiction "of all suits in equity and actions at law brought to enforce any liability or duty created by" the statute (emphasis added). See S. 3580, 76th Cong., 3d Sess., §§ 40(a), 203 (introduced by Sen. Wagner, Mar. 14, 1940); H.R. 8935, 76th Cong., 3d Sess., §§ 40(a), 203 (introduced by Rep. Lea, Mar. 14, 1940). After hearings on the bill in the Senate, representatives of the investment advisers industry and the staff of the Commission met to discuss the bill, and certain changes were made. The language that was enacted as § 214 first appeared in this compromise version of the bill. See Confidential Committee Print, S. 3580, 76th Cong., 3d Sess., § 213 (1940). That version, and the version finally enacted into law, S. 4108, 76th Cong., 3d Sess., § 214 (1940), both omitted any references to "actions at law" or to "liability."12 The unexplained deletion of a single phrase from a jurisdictional provision is, of course, not determinative of whether a private remedy exists. But it is one more piece of evidence that Congress did not intend to authorize a cause of action for anything beyond limited equitable relief.13 15 Relying on the factors identified in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, the respondent and the Commission, as amicus curiae, argue that our inquiry in this case cannot stop with the intent of Congress, but must consider the utility of a private remedy, and the fact that it may be one not traditionally relegated to state law. We rejected the same contentions last Term in Touche Ross & Co. v. Redington, where it was argued that these factors standing alone justified the implication of a private right of action under § 17(a) of the Securities Exchange Act of 1934. We said in that case: 16 "It is true that in Cort v. Ash, the Court set forth four factors that it considered 'relevant' in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort —the language and focus of the statute, its legislative history, and its purpose, see 422 U.S., at 78, 95 S.Ct., at 2088—are ones traditionally relied upon in determining legislative intent." 442 U.S. 575-576, 99 S.Ct., at 2489. 17 The statute in Touche Ross by its terms neither granted private rights to the members of any identifiable class, nor proscribed any conduct as unlawful. Touche Ross & Co. v. Redington, 442 U.S., at 576, 99 S.Ct., at 2489. In those circumstances it was evident to the Court that no private remedy was available. Section 206 of the Act here involved concededly was intended to protect the victims of the fraudulent practices it prohibited. But the mere fact that the statute was designed to protect advisers' clients does not require the implication of a private cause of action for damages on their behalf. Touche Ross & Co. v. Redington, supra, at 578, 99 S.Ct., at 2490; Cannon v. University of Chicago, 441 U.S., at 690-693, 99 S.Ct., at 1954-1955; Securities Investor Protection Corp. v. Barbour, 421 U.S., at 421, 95 S.Ct., at 1738. The dispositive question remains whether Congress intended to create any such remedy. Having answered that question in the negative, our inquiry is at an end. 18 For the reasons stated in this opinion, we hold that there exists a limited private remedy under the Investment Advisers Act of 1940 to void an investment advisers contract, but that the Act confers no other private causes of action, legal or equitable.14 Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to that court for further proceedings consistent with this opinion. 19 It is so ordered. 20 Mr. Justice POWELL, concurring. 21 I join the Court's opinion, which I view as compatible with my dissent in Cannon v. University of Chicago, 441 U.S. 677, 730, 99 S.Ct. 1946, 1974, 60 L.Ed.2d 560 (1979). Ante, at 19-21. 22 Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting. 23 The Court today holds that private rights of action under the Investment Advisers Act of 1940 (Act) are limited to actions for rescission of investment advisors contracts. In reaching this decision, the Court departs from established principles governing the implication of private rights of action by confusing the inquiry into the existence of a right of action with the question of available relief. By holding that damages are unavailable to victims of violations of the Act, the Court rejects the conclusion of every United States Court of Appeals that has considered the question. Abrahamson v. Fleschner, 568 F.2d 862 (CA2 1977); Wilson v. First Houston Investment Corp., 566 F.2d 1235 (CA5 1978); Lewis v. Transamerica Corp., 575 F.2d 237 (CA9 1978). The Court's decision cannot be reconciled with our decisions recognizing implied private actions for damages under securities laws with substantially the same language as the Act.1 By resurrecting distinctions between legal and equitable relief, the Court reaches a result that, as all parties to this litigation agree, can only be considered anomalous. 24 * This Court has long recognized that private rights of action do not require express statutory authorization. Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (1916); Tunstall v. Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944).2 The preferred approach for determining whether a private right of action should be implied from a federal statute was outlined in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). See Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Four factors were thought relevant;3 and although subsequent, decisions have indicated that the implication of a private right of action "is limited solely to determining whether Congress intended to create the private right of action," Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979), these four factors are "the criteria through which this intent could be discerned." Davis v. Passman, 442 U.S. 228, 241, 99 S.Ct. 2264, 2275, 60 L.Ed.2d 846 (1979). Proper application of the factors outlined in Cort clearly indicates that § 206 of the Act, 15 U.S.C. § 80b-6, creates a private right of action. II 25 In determining whether respondent can assert a private right of action under the Act, "the threshold question under Cort is whether the statute was enacted for the benefit of a special class of which the plaintiff is a member." Cannon v. University of Chicago, supra, 441 U.S., at 689, 99 S.Ct., at 1953. The instant action was brought by respondent as both a derivative action on behalf of Mortgage Trust of America and a class action on behalf of Mortgage Trust's shareholders. Respondent alleged that Mortgage Trust had retained Transamerica Mortgage Advisors, Inc. (TAMA), as its investment adviser and that violations of the Act by TAMA had injured the client corporation. Thus the question under Cort is whether the Act was enacted for the special benefit of clients of investment advisers. 26 The Court concedes that the language and legislative history of § 206 leave no doubt that it was "intended to benefit the clients of investment advisers," at 246, as we have previously recognized. SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 191-192, 84 S.Ct. 275, 282-283, 11 L.Ed.2d 237 (1963); Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 471, n. 11, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977).4 Because respondent's claims were brought on behalf of a member of the class the Act was designed to benefit, i. e., the clients of investment advisers, the first prong of the Cort test is satisfied in this case. III 27 The second inquiry under the Cort approach is whether there is evidence of an express or implicit legislative intent to negate the claimed private rights of action. As the Court noted in Cannon: 28 "[T]he legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question. Therefore, in situations such as the present one 'in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such cause of action would be controlling.' Cort, 422 U.S., at 82 [95 S.Ct., at 2089, 2090] (emphasis in original)." 441 U.S., at 694, 99 S.Ct., at 1956. 29 I find no such intent to foreclose private actions. Indeed, the statutory language evinces an intent to create such actions.5 In § 215(b) of the Act Congress provided that contracts made in violation of any provision of the Act "shall be void." As the Court recognizes, such a provision clearly contemplates the existence of private rights under the Act. Similar provisions in the Investment Company Act of 1940, 15 U.S.C. § 80a-46(b), the Securities Exchange Act of 1934, 15 U.S.C. § 78cc(b), and the Public Utility Holding Company Act of 1935, 15 U.S.C. § 79z(b), have been recognized as reflecting an intent to create private rights of action to redress violations of substantive provisions of those Acts. Brown v. Bullock, 194 F.Supp. 207, 225-228 (SDNY), aff'd, 294 F.2d 415 (CA2 1961); Kardon v. National Gypsum Co., 69 F.Supp. 512, 514 (ED Pa.1946); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787, n. 4 (CA2 1951); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 735, 95 S.Ct. 1917, 1925, 44 L.Ed.2d 539 (1975); Goldstein v. Groesbeck, 142 F.2d 422, 426-427 (CA2 1944). 30 The Court's conclusion that § 215, but not § 206, creates an implied private right of action ignores the relationship of § 215 to the substantive provisions of the Act contained in § 206. Like the jurisdictional provisions of a statute, § 215 "creates no cause of action of its own force and effect; it imposes no liabilities." Touche Ross & Co. v. Redington, supra, 442 U.S., at 577, 99 S.Ct., at 2490. Section 215 merely specifies one consequence of a violation of the substantive prohibitions of § 206. The practical necessity of a private action to enforce this particular consequence of a § 206 violation suggests that Congress contemplated the use of private actions to redress violations of § 206. It also indicates that Congress did not intend the powers given to the SEC to be the exclusive means for enforcement of the Act.6 31 The Court's holding that private litigants are restricted to actions for contract rescission confuses the question whether a cause of action exists with the question of the nature of relief available in such an action. Last Term in Davis v. Passman, 442 U.S., at 239, 99 S.Ct., at 2274, we recognized that "the question [of] whether a litigant has a 'cause of action' is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive." Once it is recognized that a statute creates an implied right of action, courts have wide discretion in fashioning available relief. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S.Ct. 400, 405, 24 L.Ed.2d 386 (1969) ("The existence of a statutory right implies the existence of all necessary and appropriate remedies"). As the Court stated in Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 930 (1946), "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Thus, in the absence of any contrary indication by Congress, courts may provide private litigants exercising implied rights of action whatever relief is consistent with the congressional purpose. J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 424, 95 S.Ct. 1733, 1740, 44 L.Ed.2d 263 (1975); cf. Texas & Pacific R. Co. v. Rigsby, 241 U.S., at 39, 36 S.Ct., at 484. The very decisions cited by the Court to support implication of an equitable right of action from contract voidance provisions of a statute, indicate that the relief available in such an action need not be restricted to equitable relief. Deckert v. Independence Shares Corp., 311 U.S. 282, 287-288, 61 S.Ct. 229, 232-233, 85 L.Ed. 189 (1940); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 388, 90 S.Ct. 616, 623, 24 L.Ed.2d 593 (1970) ("Monetary relief will, of course, also be a possibility"); Kardon v. National Gypsum Co., supra, at 514 ("[S]uch suits would include not only actions for rescission but also for money damages"). As the Court recognized in Porter v. Warner Holding Co., 328 U.S. 395, 399, 66 S.Ct. 1086, 1090, 90 L.Ed. 1332 (1946), "where, as here, the equitable jurisdiction of the court has properly been invoked for injunctive purposes, the court has the power to decide all relevant matters in dispute and to award complete relief even though the decree includes that which might be conferred by a court of law." Thus, if a private right of action exists under the Act, the relief available to private litigants may include an award of damages. 32 The Court concludes that the omission of the words "actions at law" from the jurisdictional provisions of § 214 of the Act and the failure of the Act to authorize expressly any private actions for damages reflect congressional intent to deny private actions for damages. Section 214 provides that federal district courts "shall have jurisdiction of violations of [the Act]" and "of all suits in equity to enjoin any violation of" the Act. 15 U.S.C. § 80b-14. Although other federal securities Acts have provisions expressly granting federal-court jurisdiction over "actions at law," the significance of this omission is Delphic at best. While a previous draft of the bill that became the Act incorporated by reference the jurisdictional provisions of the Investment Company Act and the Public Utility Holding Company Act, there is no indication in the legislative history as to why this draft was replaced with the language that became § 214.7 The only reference to the jurisdictional provisions of the Act is the statement in the House Committee Report that §§ 208-221 "contain provisions comparable to those in [the Investment Company Act]." H.R.Rep.No.2639, 76th Cong., 3d Sess., 30 (1940). As the Second Circuit concluded in Abrahamson v. Fleschner, 568 F.2d, at 875: "There is not a shred of evidence in the legislative history of the Advisers Act to support the assertion that Congress intentionally omitted the reference to 'actions at law' in order to preclude private actions by investors." See Wilson v. First Houston Investment Corp., 566 F.2d, at 1242. The Court recognizes that the more plausible explanation for the failure of § 214 expressly to include a reference to actions at law is that, unlike other federal securities Acts, the Act did not include other provisions expressly authorizing private civil actions for damages. See Abrahamson v. Fleschner, supra, at 874; Bolger v. Laventhol, Krekstein, Horwath & Horwath, 381 F.Supp. 260, 264-265 (SDNY 1974). But, as our cases indicate, this silence of the Act is not an automatic bar to private actions.8 33 The fundamental problem with the Court's focus on § 214 is that it attempts to discern congressional intent to deny a private cause of action from a jurisdictional, rather than a substantive, provision of the Act. Because § 214 is only a jurisdictional provision, "[i]t creates no cause of action of its own force and effect; it imposes no liabilities." Touche Ross & Co. v. Redington, 442 U.S., at 577, 99 S.Ct., at 2490. Since the source of implied rights of action must be found "in the substantive provisions of [the Act] which they seek to enforce, not in the jurisdictional provision," ibid., § 214's failure to refer to "actions at law" does not indicate that private actions for damages are unavailable under the Act. The subject-matter jurisdiction of the federal courts over respondent's action is unquestioned, regardless of how § 214 is interpreted, because jurisdiction is provided by the "arising under" clause of 28 U.S.C. § 1331. Cf. Abrahamson v. Fleschner, supra, at 880, n. 5 (Gurfein, J., concurring and dissenting). Where federal courts have jurisdiction over actions to redress violations of federal statutory rights, relief cannot be denied simply because Congress did not expressly provide for independent jurisdiction under the statute creating the federal rights.9 IV 34 The third portion of the Cort standard requires consideration of the compatibility of a private right of action with the legislative scheme.10 While a private remedy will not be implied to the frustration of the legislative purpose, "when that remedy is necessary or at least helpful to the accomplishment of the statutory purpose, the Court is decidedly receptive to its implication under the statute." Cannon v. University of Chicago, 441 U.S., at 703, 99 S.Ct. at 1961. 35 The purposes of the Act have been reviewed extensively by the Court in SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). A meticulous review of the legislative history convinced the Court that the purpose of the Act was "to prevent fraudulent practices by investment advisers." Id., 375 U.S., at 195, 84 S.Ct., at 284. The Court concluded that "Congress intended the Investment Advisers Act of 1940 to be construed like other securities legislation 'enacted for the purpose of avoiding frauds,' not technically and restrictively, but flexibly to effectuate its remedial purposes." Ibid. (footnote omitted). 36 Implication of a private right of action for damages unquestionably would be not only consistent with the legislative goal of preventing fraudulent practices by investment advisers, but also essential to its achievement. While the Act empowers the SEC to take action to seek equitable relief to prevent offending investment advisers from engaging in future violations, 11 in the absence of a private right of action for damages, victimized clients have little hope of obtaining redress for their injuries. Like the statute in Cannon, the Act does not assure that the members of the class it benefits are able "to activate and participate in the administrative process contemplated by the statute." Cannon v. University of Chicago, supra, 441 U.S., at 707, 99 S.Ct., at 1963 n. 41. Moreover, the SEC candidly admits that, given the tremendous growth of the investment advisory industry, the magnitude of the enforcement problem exceeds the Commission's limited examination and enforcement capabilities.12 The Commission maintains that private litigation therefore is a necessary supplement to SEC enforcement activity. Under the circumstances of this case, this position seems unassailable. Cf. J. I. Case Co. v. Borak, 377 U.S., at 432, 84 S.Ct., at 1559; Cannon v. University of Chicago, supra, 441 U.S., at 706-708, 99 S.Ct., at 1962-1963. V 37 The final consideration under the Cort analysis is whether the subject matter of the cause of action has been so traditionally relegated to state law as to make it inappropriate to infer a federal cause of action. Regulation of the activities of investment advisers has not been a traditional state concern. During the Senate hearings preceding enactment of the Act, Congress was informed that only six States had enacted legislation to regulate investment advisers. Hearings on S. 3580 before a Subcommittee of the Senate Committee on Banking and Currency, 76th Cong., 3d Sess., 996-1017 (1940). Most of the state statutes subsequently enacted have been patterned after the federal legislation. See Note, Private Causes of Action Under Section 206 of the Investment Advisers Act, 74 Mich.L.Rev. 308, 324 (1975). 38 Although some practices proscribed by the Act undoubtedly would have been actionable in common-law actions for fraud, "Congress intended the Investment Advisers Act to establish federal fiduciary standards for investment advisers." Santa Fe Industries, Inc. v. Green, 430 U.S., at 471, n. 11, 97 S.Ct., at 1300 n. 11; SEC v. Capital Gains Research Bureau, Inc., supra, 375 U.S., at 191-192, 84 S.Ct., at 282, 283. While state law may be applied to parties subject to the Act, "as long as private causes of action are available in federal courts for violation of the federal statutes, [the] enforcement problem is obviated." Burks v. Lasker, 441 U.S. 471, 479, 99 S.Ct. 1831, 1837, n. 6, 60 L.Ed.2d 404, n. 6 (1979). VI 39 Each of the Cort, factors points toward implication of a private cause of action in favor of clients defrauded by investment advisers in violation of the Act. The Act was enacted for the special benefit of clients of investment advisers, and there is no indication of any legislative intent to deny such a cause of action, which would be consistent with the legislative scheme governing an area not traditionally relegated to state law. Under these circumstances an implied private right of action for damages should be recognized. 1 Hereinafter "the petitioners" refers to the petitioners other than the Trust. The Trust is a real estate investment trust within the meaning of §§ 856-858 of the Internal Revenue Code of 1954, 26 U.S.C. §§ 856-858. TAMA, in addition to advising the Trust, managed its day-to-day operations. Transamerica is the sponsor of the Trust and the parent of Land Capital. Land Capital is the parent of TAMA, through a subsidiary, and sold the Trust its initial portfolio of investments. Several of the individual trustees were at the time of suit affiliated with TAMA, Transamerica, or other subsidiaries of Transamerica. 2 Each cause of action was stated as a derivative shareholder's claim and restated as a shareholder's class claim. 3 The pertinent orders of the District Court are unreported. 4 The District Court was of the view that it was without subject-matter jurisdiction of the respondent's suit. The Court of Appeals recharacterized the District Court's order dismissing the suit as properly based upon the respondent's failure to state a claim upon which relief can be granted, Fed.Rule Civ.Proc. 12(b)(6), noting that the respondent's suit was apparently within the District Court's general federal-question jurisdiction under 28 U.S.C. § 1331. 575 F.2d, at 239, n. 2. The Court of Appeals in this case followed the Courts of Appeals for the Fifth and Second Circuits, which also have held that private causes of action may be maintained under the Act. See Wilson v. First Houston Investment Corp., 566 F.2d 1235 (CA5 1978); Abrahamson v. Fleschner, 568 F.2d 862 (CA2 1977). 5 Section 209, 54 Stat. 854, as amended, as set forth in 15 U.S.C. § 80b-9, provides in part as follows: "(e) . . . Whenever it shall appear to the Commission that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any provision of this subchapter, or of any rule, regulation, or order hereunder, or that any person has aided, abetted, counseled, commanded, induced, or procured, is aiding, abetting, counseling, commanding, inducing, or procuring, or is about to aid, abet, counsel, command, induce, or procure such a violation, it may in its discretion bring an action in the proper district court of the United States, or the proper United States court of any Territory or other place subject to the jurisdiction of the United States, to enjoin such acts or practices and to enforce compliance with this subchapter or any rule, regulation, or order hereunder. Upon a showing that such person has engaged, is engaged, or is about to engage in any such act or practice, or in aiding, abetting, counseling, commanding, inducing, or procuring any such act or practice, a permanent or temporary injunction or decree or restraining order shall be granted without bond. The Commission may transmit such evidence as may be available concerning any violation of the provisions of this subchapter, or of any rule, regulation, or order thereunder, to the Attorney General, who, in his discretion, may institute the appropriate criminal proceedings under this subchapter." The language in § 209(e) that authorizes the Commission to obtain an injunction against persons "aiding, abetting, . . . or procuring" violations of the Act was added to the statute in 1960. 74 Stat. 887. 6 Section 206, 54 Stat. 852, as amended, as set forth in 15 U.S.C. § 80b-6, reads as follows: "§ 80b-6. Prohibited transactions by investment advisers "It shall be unlawful for any investment adviser, by use of the mails or any means or instrumentality of interstate commerce, directly or indirectly— "(1) to employ any device, scheme, or artifice to defraud any client or prospective client; "(2) to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client; "(3) acting as principal for his own account, knowingly to sell any security to or purchase any security from a client, or acting as broker for a person other than such client, knowingly to effect any sale or purchase of any security for the account of such client, without disclosing to such client in writing before the completion of such transaction the capacity in which he is acting and obtaining the consent of the client to such transaction. The prohibitions of this paragraph shall not apply to any transaction with a customer of a broker or dealer if such broker or dealer is not acting as an investment adviser in relation to such transaction; "(4) to engage in any act, practice, or course of business which is fraudulent, deceptive, or manipulative. The Commission shall, for the purposes of this paragraph (4) by rules and regulations define, and prescribe means reasonably designed to prevent, such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative." Section 206(4) was added to the statute in 1960. 74 Stat. 887. At that time Congress also extended the provisions of § 206 to all investment advisers, whether or not such advisers were required to register under § 203 of the Act, 15 U.S.C. § 80b-3. 74 Stat. 887. 7 Section 215, 54 Stat. 856, as set forth in 15 U.S.C. § 80b-15, reads in part as follows: "§ 80b-15. Validity of contracts * * * * * "(b) Every contract made in violation of any provision of this subchapter and every contract heretofore or hereafter made, the performance of which involves the violation of, or the continuance of any relationship or practice in violation of any provision of this subchapter, or any rule, regulation, or order thereunder, shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, regulation, or order, shall have made or engaged in the performance of any such contract, and (2) as regards the rights of any person who, not being a party to such contract, shall have acquired any right thereunder with actual knowledge of the facts by reason of which the making or performance of such contract was in violation of any such provision." 8 One possibility, of course, is that Congress intended that claims under § 215 would be raised only in state court. But we decline to adopt such an anomalous construction without some indication that Congress in fact wished to remit the litigation of a federal right to the state courts. 9 Jurisdiction of such suits would exist under § 214, 15 U.S.C. § 80b-14, which, though referring in terms only to "suits in equity to enjoin any violation," would equally sustain actions where simple declaratory relief or rescission is sought. 10 See Securities Act of 1933, §§ 11 and 12, 15 U.S.C. §§ 77k and 77l ; Securities Exchange Act of 1934, §§ 9(e), 16(b), and 18, 15 U.S.C. §§ 78i(e), 78p(b), and 78r; Public Utility Holding Company Act of 1935, §§ 16(a) and 17(b), 15 U.S.C. §§ 79p(a) and 79q(b); Trust Indenture Act of 1939, § 323(a), 15 U.S.C. § 77www(a); Investment Company Act of 1940, § 30(f), 15 U.S.C. § 80a-29(f). 11 Section 214, 54 Stat. 856, as set forth in 15 U.S.C. § 80b-14, provides: "§ 80b-14. Jurisdiction of offenses and suits "The district courts of the United States and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have jurisdiction of violations of this subchapter or the rules, regulations, or orders thereunder, and, concurrently with State and Territorial courts, of all suits in equity to enjoin any violation of this subchapter or the rules, regulations, or orders thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enjoin any violation of this subchapter or rules, regulations, or orders thereunder, may be brought in any such district or in the district wherein the defendant is an inhabitant or transacts business, and process in such cases may be served in any district of which the defendant is an inhabitant or transacts business or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections 1254, 1291 and 1292 of title 28, and section 7, as amended, of the Act entitled 'An Act to establish a court of appeals for the District of Columbia', approved February 9, 1893. No costs shall be assessed for or against the Commission in any proceeding under this subchapter brought by or against the Commission in any court." 12 The respondent argues that the omission of any reference in § 214 to "actions at law" is without relevance because jurisdiction over such cases as this would often exist under 28 U.S.C. § 1331, the general federal-question jurisdiction statute, and because there was no express statement that the omission was intended to preclude private remedies. But the respondent concedes that the language of § 214 was probably narrowed in view of the absence from the Investment Advisers Act of any express provision for a private cause of action for damages. We agree, but find the omission inconsistent more generally with an intent on the part of Congress to make such a remedy available. 13 Congress amended the Investment Company Act in 1970 to create a narrowly circumscribed right of action for damages against investment advisers to registered investment companies. Act of Dec. 14, 1970, § 20, 84 Stat. 1428, 15 U.S.C. § 80a-35(b). While subsequent legislation can disclose little or nothing of the intent of Congress in enacting earlier laws, see SEC v. Capital Gains Research Bureau Inc., 375 U.S. 180, 199-200, 84 S.Ct. 275, 286-287, 11 L.Ed.2d 237, the 1970 amendments to the companion Act are another clear indication that Congress knew how to confer a private right of action when it wished to do so. In 1975, the Commission submitted a proposal to Congress that would have amended § 214 to extend jurisdiction, without regard to the amount in controversy, to "actions at law" under the Act. See S. 2849, 94th Cong., 2d Sess., § 6 (1976). The Commission was of the view that the amendment also would confirm the existence of a private right of action to enforce the Act's substantive provisions. See Hearings on S. 2849 before the Subcommittee on Securities of the Senate Committee on Banking, Housing, and Urban Affairs, 94th Cong., 2d Sess., 17 (1976); Hearings on H.R. 12981 and H.R. 13737 before the Subcommittee on Consumer Protection and Finance of the House Committee on Interstate and Foreign Commerce, 94th Cong., 2d Sess., 36-37 (1976). The Senate Committee reported favorably on the provision as proposed by the Commission, but the bill did not come to a vote in either House. 14 Where rescission is awarded, the rescinding party may of course have restitution of the consideration given under the contract, less any value conferred by the other party. See 5 A. Corbin, Contracts § 1114 (1964). Restitution would not, however, include compensation for any diminution in the value of the rescinding party's investment alleged to have resulted from the adviser's action or inaction. Such relief could provide by indirection the equivalent of a private damages remedy that we have concluded Congress did not confer. 1 The provisions of § 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-6, are substantially similar to § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 CFR § 240.10b-5 (1979), both of which have been held to create private rights of action for which damages may be recovered. Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 13, n. 9, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (1971); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539 (1975). The provisions of § 215(b) of the Act, 15 U.S.C. § 80b-15(b), are substantially similar to other provisions in the Securities Exchange Act of 1934, 15 U.S.C. § 78cc(b). 2 Rigsby marked the first time this Court implied a private right of action. There the Court recognized that implied rights of action were not novel and had been a not infrequent feature of the common law. 241 U.S., at 39-40, 36 S.Ct., at 484-485 (citing Couch v. Steel, 3 El. & Bl. 402, 411, 118 Eng.Rep. 1193, 1196 (Q.B.1854)). See Cannon v. University of Chicago, 441 U.S. 677, 689, n. 10, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). 3 "First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted,' Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 60 L.Ed. 874 (1916) (emphasis supplied)—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e. g., National Railroad Passenger Corp. v. National Ass'n of Railroad Passengers, 414 U.S. 453, 458, 460, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (Amtrak ). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e. g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 423, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975); Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); at 400, 91 S.Ct., at 2006 (Harlan J., concurring in judgment)." 422 U.S., at 78, 95 S.Ct., at 2087-2088. 4 The statutory language clearly indicates that the intended beneficiaries of the Act are the clients of investment advisers. Section 206 makes it unlawful for any investment adviser "(1) to employ any device, scheme, or artifice to defraud any client or prospective client; (2) to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client"; and (3) to engage in certain transactions with "a client" or "for the account of such client," without making certain written disclosures "to such client" and "obtaining the consent of the client to such transaction." Statements in the House and Senate Committee Reports that accompanied the original legislation reinforce the conclusion that the Act was designed to protect investors against fraudulent practices by investment advisers. See, e. g., H.R.Rep.No.2639, 76th Cong., 3d Sess., 28 (1940); S.Rep.No.1775, 76th Cong., 3d Sess., 21 (1940). 5 Also, as the Court recognizes, the legislative history of the Act is "entirely silent" on the question of private rights of action; it neither explicitly nor implicitly indicates that Congress intended to deny private damages actions to clients victimized by their investment advisers. Every court that has considered the question has come to this conclusion. 6 The Court concludes that because the Act expressly provides for SEC enforcement proceedings, Congress must not have intended to create private rights of action. This application of the oft-criticized maxim expressio unius est exclusio alterius ignores our rejection of it in Cort v. Ash, 422 U.S., at 82-83, n. 14, 95 S.Ct., at 2089-2090, in the absence of specific support in the legislative history for the proposition that express statutory remedies are to be exclusive. Moreover, the Court ignores the fact that the enforcement powers given the SEC under the Act are virtually identical to those embodied in other securities Acts under which implied rights of action have been recognized. Abrahamson v. Fleschner, 568 F.2d 862, 874, n. 19 (CA2 1977). 7 Petitioners' suggestion that this change may have been the product of industry pressure is at odds with the legislative history. Industry objections to the original draft of the legislation focused on matters unrelated to the jurisdictional provisions of the bill. See, e. g., Hearings on H.R. 10065 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 76th Cong., 3d Sess., 92 (1940). 8 Congressional failure to make express provision for private actions for damages is not surprising in light of Congress' traditional reliance on the courts to determine whether private rights of action should be implied and to award appropriate relief. See Cannon v. University of Chicago, 441 U.S., at 718, 99 S.Ct., at 1968 (REHNQUIST, J., concurring). Although recent decisions of the Court have contained admonitions for Congress to legislate with greater specificity in the future, ibid. (REHNQUIST, J., concurring) and id., at 749, 99 S.Ct., at 1985 (POWELL, J., dissenting); Touche Ross & Co. v. Redington, 442 U.S. 560, 579, 99 S.Ct. 2479, 2490-2491, 61 L.Ed.2d 82 (1979), Congress cannot be faulted for failing to anticipate these admonitions when the Act was enacted in 1940. 9 If Congress provided no indication of any intent to deny private rights of action when § 214 was enacted, the subsequent failure of Congress to amend § 214 likewise offers none. The 1960 amendments to the Advisers Act expanded the scope of § 206 and strengthened the authority of the SEC. 74 Stat. 887. These amendments were not addressed to the private-right-of-action question, nor is there any indication that Congress considered the question when the amendments were passed. Moreover, as the Court has noted in reviewing the legislative history of the Act on a prior occasion: "[T]he intent of Congress must be culled from the events surrounding the passage of the 1940 legislation. '[O]pinions attributed to a Congress twenty years after the event cannot be considered evidence of the intent of the Congress of 1940.' " SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 199-200, 84 S.Ct. 275, 287, 11 L.Ed.2d 237 (1963). This admonition applies with equal force with respect to the 1970 amendments to the Act. Although the 1970 amendments were part of legislation that created a new private right of action under the Investment Company Act, "it would be odd to infer from Congress' actions concerning the newly created provisions of [a companion Act] any intention regarding the enforcement of a long-existing statute." Cort v. Ash, 422 U.S., at 83, n. 14, 95 S.Ct., at 2090. Moreover, the Committee Reports accompanying the 1970 amendments clearly indicated that the provision of express rights of action was not intended to affect the availability of implied rights of action elsewhere. H.R.Rep.No.91-1382, p. 38 (1970); S.Rep.No.91-184, p. 16 (1969). The failure of Congress during its 1976 and 1977 sessions to adopt an SEC proposal to add the words "actions at law" to § 214 of the Act also does not foreclose private enforcement. The proposal, which was favorably reported on by a Senate Committee, S.Rep.No.94-910 (1976), was intended only to confirm the existence of an implied right of action and not to create one. 575 F.2d 237, 238, n. 1 (CA 9 1978). The failure of Congress to enact legislation is not always a reliable guide to legislative intent, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 382, n. 11, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969); Fogarty v. United States, 340 U.S. 8, 13-14, 71 S.Ct. 5, 8, 95 L.Ed. 10 (1950). It is a totally inadequate guide when, as here, Congress may have deemed the proposed legislation unnecessary, given the adequacy of existing legislation to support an implied right of action. 10 The Court ignores the third and fourth prongs of the Cort test on the ground that they were ignored in Touche Ross & Co. v. Redington, supra. However, in Touche Ross the Court found it unnecessary to consider these factors only because the other portions of the Cort standard could not be satisfied. By contrast, the Court here concludes that at least the first part of the Cort test is satisfied. 11 See, e. g., § 209(e) of the Act, 15 U.S.C. § 80b-9(e) (authorizing the SEC to seek injunctive relief against violations of the Act); § 203(e), 15 U.S.C. § 80b-3(e) (empowering the SEC to revoke the registration of investment advisers). 12 As of December 31, 1978, a total of 5,385 investment advisers were registered with the SEC. The Commission estimates that for the fiscal year ending October 30, 1980, more than $200 billion in assets will be under advisement by registered investment advisers. Brief for SEC as Amicus Curiae 32-33. In 1977, the SEC was able to conduct only 459 inspections of investment advisers. 43 SEC Ann.Rep. 234 (1977). As the Court recognized in Cannon, in many cases the enforcement agency may be unable to investigate meritorious private complaints, and even when the few investigations do uncover violations, the private victims, of the violations need not be included in the relief. 441 U.S., at 706-708, n. 41, 99 S.Ct., at 1962, n. 41.

78

444 U.S. 51 100 S.Ct. 318 62 L.Ed.2d 210 Cecil D. ANDRUS, Secretary of the Interior, et al., Appellants,v.L. Douglas ALLARD et al. No. 78-740. Argued Oct. 1, 1979. Decided Nov. 27, 1979. Syllabus The Eagle Protection Act makes it unlawful to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import" bald or golden eagles or any part thereof, with the proviso that the prohibition does not apply to "possession or transportation" of such eagles or parts thereof taken prior to the effective date of the Act. Similarly, the Migratory Bird Treaty Act makes it unlawful to engage in such activities with respect to migratory birds and their parts, unless they are permitted by regulations promulgated under the Act. Appellant Secretary of the Interior promulgated regulations prohibiting commercial transactions in parts of birds legally killed before they came under the protection of these Acts. After two of the appellees who had sold "pre-existing" Indian artifacts partly composed of feathers of currently protected birds were prosecuted for violations of both Acts, appellees, who are engaged in the trade of such artifacts, brought suit in District Court for declaratory and injunctive relief, alleging that the Acts do not forbid the sale of appellees' artifacts insofar as the constituent bird parts were obtained prior to the effective dates of the Acts, and that if the Acts and regulations do apply to such property, they violate the Fifth Amendment. The District Court granted the relief sought, holding that the Acts were to be interpreted as not applicable to pre-existing, legally obtained bird parts, and that therefore the regulations were void as unauthorized extensions of the Acts and were violative of appellees' Fifth Amendment property rights. Held: 1. Both Acts contemplate regulatory prohibition of commerce in the parts of protected birds, without regard to when those birds were originally taken. Pp. 322-326. (a) In view of the exhaustive and careful enumeration of forbidden acts in the Eagle Protection Act, the narrow limitation of the proviso to "possession or transportation" compels the conclusion that, with respect to pre-existing artifacts, Congress specifically, declined to except any activities other thanpossession and transportation from the general ban. The legislative history shows that this precise use of terminology was intentional. Moreover, the prohibition against the sale of bird parts lawfully taken before the effective date of federal protection is fully consonant with the Act's purpose of preventing evasion of the statutory prohibitions for commercial gain. Pp. 322-323. (b) While the Migratory Bird Treaty Act contains no explicit exception for the possession or transportation of bird parts obtained before the federal protection became effective, nevertheless the text, context, and purpose of that Act support the Secretary's interpretative regulations. There is nothing in the Act that requires an exception for the sale of pre-existing artifacts, and no such statutory exception can be implied. The Act's structure and context also suggest congressional understanding that regulatory authorities could ban the sale of lawfully taken birds, except where otherwise expressly instructed by the Act. Pp. 323-326. 2. The simple prohibition of the sale of lawfully acquired property does not effect a taking in violation of the Fifth Amendment. The challenged regulations do not compel the surrender of the artifacts in question, and there is no physical invasion or restraint upon them. The denial of one traditional property right does not always amount to a taking. Nor is the fact that the regulations prevent the most profitable use of appellees' property dispositive, since a reduction in the value of property is not necessarily equated with a taking. Pp. 326-328. Harriet S. Shapiro, Washington, D. C., for appellants. John P. Akolt, III, Denver, Colo., for appellees. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The Eagle Protection Act and the Migratory Bird Treaty Act are conservation statutes designed to prevent the destruction of certain species of birds.1 Challenged in this case is the validity of regulations promulgated by appellant Secretary of the Interior that prohibit commercial transactions in parts of birds legally killed before the birds came under the protection of the statutes. The regulations provide in pertinent part: 50 CFR § 21.2(a) (1978): 2 "Migratory birds, their parts, nests, or eggs, lawfully acquired prior to the effective date of Federal protection under the Migratory Bird Treaty Act . . . may be possessed or transported without a Federal permit, but may not be imported, exported, purchased, sold, bartered, or offered for purchase, sale, trade, or barter. . . ." 50 CFR § 22.2(a) (1978): 3 "Bald eagles, alive or dead, or their parts, nests, or eggs lawfully acquired prior to June 8, 1940, and golden eagles, alive or dead, or their parts, nests, or eggs lawfully acquired prior to October 24, 1962, may be possessed, or transported without a Federal permit, but may not be imported, exported, purchased, sold, traded, bartered, or offered for purchase, sale, trade or barter. . . ." 4 Appellees are engaged in the trade of Indian artifacts: several own commercial enterprises, one is employed by such an enterprise, and one is a professional appraiser. A number of the artifacts are partly composed of the feathers of currently protected birds, but these artifacts existed before the statutory protections came into force. After two of the appellees who had sold "pre-existing" artifacts were prosecuted for violations of the Eagle Protection Act and the Migratory Bird Treaty Act,2 appellees brought this suit for declaratory and injunctive relief in the District Court for the District of Colorado. The complaint alleged that the statutes do not forbid the sale of appellees' artifacts insofar as the constituent birds' parts were obtained prior to the effective dates of the statutes. It further alleged that if the statutes and regulations do apply to such property, they violate the Fifth Amendment.3 5 A three-judge court, convened pursuant to 28 U.S.C. § 2282 (1970 ed.),4 held that because of "grave doubts whether these two acts would be constitutional if they were construed to apply to pre-act bird products," the Acts were to be interpreted as "not applicable to preexisting, legally-obtained bird parts or products therefrom. . . ." App. to Juris. Statement 13a-14a. Accordingly, the court ruled that "the interpretive regulations, 50 C.F.R. §§ 21.2(a) and 22.2(a) [are] void as unauthorized extensions of the Migratory Bird Treaty Act and the Eagle Protection Act and [are] violative of the [appellees'] Fifth Amendment property rights." Id., at 14a. Judgment was entered declaring "the subject regulations to be invalid and unenforceable as against the [appellees'] property rights in feathers and artifacts owned before the effective date of the subject statute," and enjoining appellants "from any interference with the exercise of such rights, including the rights of sale, barter or exchange." Id., at 16a-17a. We noted probable jurisdiction. 440 U.S. 905, 99 S.Ct. 1210, 59 L.Ed.2d 452 (1979). We reverse. 6 * Appellant Secretary of the Interior contends that both the Eagle Protection and Migratory Bird Treaty Acts contemplate regulatory prohibition of commerce in the parts of protected birds, without regard to when those birds were originally taken. Appellees respond that such a prohibition serves no purpose, arguing that statutory protection of wildlife is not furthered by am embargo upon traffic in avian artifacts that existed before the statutory safeguards came into effect. A. 7 Our point of departure in statutory analysis is the language of the enactment. See Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979). "Though we may not end with the words in construing a disputed statute, one certainly begins there." F. Frankfurter, Some Reflections on the Reading of Statutes 16 (1947). 8 The terms of the Eagle Protection Act plainly must be read as appellant Secretary argues. The sweepingly framed prohibition in § 668(a) makes it unlawful to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import" protected birds. Congress expressly dealt with the problem of pre-existing bird products by qualifying that general prohibition with the proviso that "nothing herein shall be construed to prohibit possession or transportation " of bald or golden eagle parts taken prior to the effective date of coverage under the Act. (Emphasis supplied.) 9 In view of the exhaustive and careful enumeration of forbidden acts in § 668(a), the narrow limitation of the proviso to "possession or transportation" compels the conclusion that, with respect to pre-existing artifacts, Congress specifically declined to except any activities other than possession and transportation from the general statutory ban. To read a further exemption for pre-existing artifacts into the Eagle Protection Act, "we would be forced to ignore the ordinary meaning of plain language." TVA v. Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978). Nor can there be any question of oversight or drafting error. Throughout the statute the distinct concepts of possession, transportation, taking, and sale or purchase are treated with precision. The broad proscriptive provisions of the Eagle Protection Act were consistently framed to encompass a full catalog of prohibited acts, always including sale or purchase. See §§ 668(a), 668(b), 668b(b). In contrast, the exemptions created were specifically limited to possession or transportation, § 668(a),5 taking, § 668a,6 or taking, possession, or transportation, ibid.7 10 That this precise use of terminology was intentional is clear from the legislative history. An explanatory letter from the Department of Agriculture that was adopted in the Senate Report on the bill defines the reach of the Eagle Protection Act to make it unlawful to 11 "take, possess, sell, purchase, transport, or otherwise deal with the bald eagle . . . with the proviso to the effect that it will not apply to the possession or transportation of any such eagle . . . taken prior to the effective date of the bill." S.Rep. No. 1589, 76th Cong., 3d Sess., 1 (1940). (Emphasis added.) 12 Further when Congress amended the Eagle Protection Act in 1962 to cover golden eagles, it once again excepted only possession and transportation of pre-existing artifacts from the general ban. 76 Stat. 1246. And it is particularly relevant that Congress has twice reviewed and amended the statute without rejecting the Department's view that it is authorized to bar the sale of pre-existing artifacts.8 Cf. NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974). 13 The prohibition against the sale of bird parts lawfully taken before the effective date of federal protection is fully consonant with the purposes of the Eagle Protection Act. It was reasonable for Congress to conclude that the possibility of commercial gain presents a special threat to the preservation of the eagles because that prospect creates a powerful incentive both to evade statutory prohibitions against taking birds and to take a large volume of birds. The legislative draftsmen might well view evasion as a serious danger because there is no sure means by which to determine the age of bird feathers; feathers recently taken can easily be passed off as having been obtained long ago.9 14 Appellees argue that even if the age of feathers cannot be ascertained, it is still possible to date the Indian artifacts of which the feathers are a constituent. Thus, they contend that the goal of preventing evasion of the statute could have been achieved by means less onerous than a general sales ban: for example, by requiring documentation and appraisal of feathered artifacts. The short answer is that this legislation is not limited to the sale of feathers as part of artifacts; it broadly addresses sale or purchase of feathers and other bird parts in any shape or form. The prohibitions of the statute were devised to resist any evasion, whether in the sale of feathers as part of datable artifacts or in the sale of separate undatable bird products. Moreover, even if there were alternative ways to insure statutory evasion, Congress was free to choose the method it found most efficacious and convenient. "[T]he legislature . . . is authorized to pass measures for the protection of the people . . . in the exercise of the police power, and is itself the judge of the necessity or expediency of the means adopted."10 New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 40, 29 S.Ct. 10, 12, 53 L.Ed. 75 (1908). B 15 The fundamental prohibition in the Migratory Bird Treaty Act is couched in language as expansive as that employed in the Eagle Protection Act. Title 16 U.S.C. § 703 provides that 16 "[u]nless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful . . . to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export" 17 protected birds. But the Migratory Bird Treaty Act contains no explicit exception for the possession or transportation of bird parts obtained before the federal protection became effective: that exception is created by the Secretary's regulation. 50 CFR § 21.2 (1978). Unlike our analysis under the Eagle Protection Act, therefore, reliance upon the negative inference from a narrow statutory exemption for the transportation or possession of pre-existing artifacts is precluded.11 Nevertheless, the text, context, and purpose of the Migratory Bird Treaty Act support the Secretary's interpretative regulations of that enactment. 18 On its face, the comprehensive statutory prohibition is naturally read as forbidding transactions in all bird parts, including those that compose pre-existing artifacts. While there is no doubt that regulations may exempt transactions from the general ban,12 nothing in the statute requires an exception for the sale of pre-existing artifacts. And no such statutory exception can be implied. When Congress wanted an exemption from the statutory prohibition, it provided so in unmistakable terms. Cf. 16 U.S.C. § 711.13 19 The structure and context of this enactment—to the extent that they enlighten—also suggest congressional understanding that regulatory authorities could ban the sale of lawfully taken birds, except where otherwise expressly instructed by the statute. If Congress had assumed that lawfully taken birds could automatically be sold under the Act, it would have been unnecessary to specify in § 711 that it is permissible under certain circumstances to sell game birds lawfully bred on farms and preserves.14 Furthermore, Congress could not have been unaware that a traditional legislative tool for enforcing conservation policy was a flat proscription on the sale of wildlife, without regard to the legality of the taking. At the time, a number of States, for example, simply prohibited or restricted possession or sale of wildlife during seasons closed to hunting. See New York ex rel. Silz v. Hesterberg, supra, at 40, 29 S.Ct., at 12. Also before Congress was the Canadian law implementing the Migratory Bird Treaty,15 and that law itself contained a provision barring the purchase, sale, or possession of protected bird parts "during the time when the capturing, killing, or taking of such bird, nest, or egg is prohibited by law," 55 Cong.Rec. 5412 (1917).16 (Emphasis added.) The Canadian sale ban of which Congress was aware—thus applied not to illegally taken birds, but rather to all protected birds during the season in which hunting was prohibited. Against this background, the absence of a statutory exemption for pre-existing avian artifacts implies that the Migratory Bird Treaty Act was intended to embrace the traditional conservation technique of banning transactions in protected birds, whenever taken. 20 Related statutes may sometimes shed light upon a previous enactment. Cf. United States v. Aluminum Co. of America, 148 F.2d 416, 429 (CA2 1945) (L. Hand, J.). Other conservation legislation enacted by Congress has employed the enforcement technique of forbidding the sale of protected wildlife without respect to the lawfulness of the taking. The Eagle Protection Act is a notable example. The more recent Endangered Species Act of 1973, as originally framed, prohibited the sale of products or parts of endangered species, without an exception for those products legally held for commercial purposes at the time of the Act's passage.17 See 16 U.S.C. § 1538; United States v. Kepler, 531 F.2d 796 (CA6 1976); Delbay Pharmaceuticals, Inc. v. Department of Commerce, 409 F.Supp. 637, 641-642, 644 (D.C.D.C.1976); see also H.R.Rep. No. 94-823, pp. 3-4 (1976) (discussing an amendment to the Endangered Species Act). And when Congress has meant to exempt lawfully taken items from the retroactive application of statutory prohibitions, it has taken care to do so explicitly, see 16 U.S.C. § 1372 (Marine Mammal Protection Act of 1972); 16 U.S.C. § 1538(b) (Endangered Species Act of 1973), or it has specifically amended the statute for that purpose, see 90 Stat. 911, amending 16 U.S.C. § 1539 (Endangered Species Act); 92 Stat. 3760, amending 16 U.S.C. §§ 1538 and 1539 (Endangered Species Act). In contrast, Congress has never established a pre-existing-artifacts exception to the Migratory Bird Treaty Act, even though it has amended the statute on several occasions.18 21 We are therefore persuaded that the Migratory Bird Treaty Act empowers the Secretary of the Interior to bar commercial transactions in covered bird parts in spite of the fact that the parts were lawfully taken before the onset of federal protection. We see no indication to the contrary.19 It follows that the Secretary could properly permit the possession or transportation, and not the sale or purchase, of pre-existing bird artifacts.20 Accordingly, we disagree with the District Court's interpretation of the Act as inapplicable to pre-existing legally obtained bird parts. II 22 We also disagree with the District Court's holding that, as construed to authorize the prohibition of commercial transactions in pre-existing avian artifacts, the Eagle Protection and Migratory Bird Treaty Acts violate appellees' Fifth Amendment property rights because the prohibition wholly deprives them of the opportunity to earn a profit from those relics.21 23 Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123-128, 98 S.Ct. 2646, 2659-2662, 57 L.Ed.2d 631 (1978), is our most recent exposition on the Takings Clause. That exposition need not be repeated at length here. Suffice it to say that government regulation—by definition—involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase. "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922); see Penn Central, supra, 438 U.S., at 124, 98 S.Ct., at 2659. 24 The Takings Clause, therefore, preserves governmental power to regulate, subject only to the dictates of " 'justice and fairness.' " Ibid.; 98 S.Ct., at 2659; see Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962). There is no abstract or fixed point at which judicial intervention under the Takings Clause becomes appropriate. Formulas and factors have been developed in a variety of settings. See Penn Central, supra, 438 U.S., at 123-128, 98 S.Ct., at 2659-2662. Resolution of each case, however, ultimately calls as much for the exercise of judgment as for the application of logic. 25 The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. Rather, a significant restriction has been imposed on one means of disposing of the artifacts. But the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full "bundle" of property rights, the destruction of one "strand" of the bundle is not a taking, because the aggregate must be viewed in its entirety. Compare Penn Central, supra, at 130-131, 98 S.Ct., at 2662-2663 and United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956), with Pennsylvania Coal Co. v. Mahon, supra, and United States v. Virginia Electric & Power Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961). See also Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1230-1233 (1967). In this case, it is crucial that appellees retain the rights to possess and transport their property, and to donate or devise the protected birds. 26 It is, to be sure, undeniable that the regulations here prevent the most profitable use of appellees' property. Again, however, that is not dispositive. When we review regulation, a reduction in the value of property is not necessarily equated with a taking. Compare Goldblatt v. Hempstead, supra, 369 U.S., at 594, 82 S.Ct., at 990, and Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915), with Pennsylvania Coal Co. v. Mahon, supra.22 In the instant case, it is not clear that appellees will be unable to derive economic benefit from the artifacts; for example, they might exhibit the artifacts for an admissions charge. At any rate, loss of future profits unaccompanied by any physical property restriction—provides a slender reed upon which to rest a takings claim. Prediction of profitability is essentially a matter of reasoned speculation that courts are not especially competent to perform. Further, perhaps because of its very uncertainty, the interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests. Cf., e. g., Fuller & Perdue, The Reliance Interest in Contract Damages (pt. 1), 46 Yale L.J. 52 (1936). 27 Regulations that bar trade in certain goods have been upheld against claims of unconstitutional taking. For example, the Court has sustained regulations prohibiting the sale of alcoholic beverages despite the fact that individuals were left with previously acquired stocks. Everard's Breweries v. Day, 265 U.S. 545, 44 S.Ct. 628, 68 L.Ed. 1174 (1924), involved a federal statute that forbade the sale of liquors manufactured before passage of the statute. The claim of a taking in violation of the Fifth Amendment was tersely rejected. Id., at 563, 44 S.Ct., at 633.23 Similarly, in Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260 (1920), a federal law that extended a domestic sales ban from intoxicating to nonintoxicating alcoholic beverages "on hand at the time of the passage of the act," id., at 302, 40 S.Ct., at 150, was upheld. Mr. Justice Brandeis dismissed the takings challenge, stating that "there was no appropriation of private property, but merely a lessening of value due to a permissible restriction imposed upon its use."24 Id., at 303, 40 S.Ct., at 151. See Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887). 28 It is true that appellees must bear the costs of these regulations. But, within limits, that is a burden borne to secure "the advantage of living and doing business in a civilized community." Pennsylvania Coal Co. v. Mahon, supra, 260 U.S., at 422, 43 S.Ct., at 163 (Brandeis, J., dissenting). We hold that the simple prohibition of the sale of lawfully acquired property in this case does not effect a taking in violation of the Fifth Amendment.25 29 Reversed. 30 THE CHIEF JUSTICE concurs in the judgment of the Court. 1 The Eagle Protection Act, § 1, 54 Stat. 250, as amended, as set forth in 16 U.S.C. § 668(a), provides in pertinent part: "Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do so as provided in this subchapter, shall knowingly, or with wanton disregard for the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner any bald eagle commonly known as the American eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof of the foregoing eagles, or whoever violates any permit or regulation issued pursuant to this subchapter, shall be fined not more than $5,000 or imprisoned not more than one year or both: . . . Provided further, That nothing herein shall be construed to prohibit possession or transportation of any bald eagle, alive or dead, or any part, nest, or egg thereof, lawfully taken prior to June 8, 1940, and that nothing herein shall be construed to prohibit possession or transportation of any golden eagle, alive or dead, or any part, nest, or egg thereof, lawfully taken prior to the addition to this subchapter of the provisions relating to preservation of the golden eagle." The Migratory Bird Treaty Act, § 2, 40 Stat. 755, as amended, as set forth in 16 U.S.C. § 703, similarly provides: "Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936, and the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972." 2 Appellee L. Douglas Allard was convicted and fined for violating the Eagle Protection Act, 16 U.S.C. § 668(a), which establishes criminal penalties for unpermitted eagle sales. United States v. Allard, 397 F.Supp. 429 (D.C.Mont.1975). Appellee Pierre Bovis was prosecuted under the Eagle Protection Act and under the Migratory Bird Treaty Act, 16 U.S.C. § 707, which provides criminal penalties for the unlawful sale of migratory birds. United States v. Bovis, Nos. 75-CR-63 and 75-CR-66 (Colo.1975). 3 Appellees also alleged that the Migratory Bird Treaty Act and regulations thereunder were unconstitutionally vague and involved an improper delegation of legislative power to the Executive Branch. These allegations were not passed on by the District Court and are not pressed here. We therefore do not address them. 4 The Secretary contends that appellees' constitutional claims are insubstantial and did not justify convention of a three-judge court. We disagree. See Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Hagans v. Lavine, 415 U.S. 528, 536-538, 94 S.Ct. 1372, 1378-1380, 39 L.Ed.2d 577 (1974). 5 Exemption for pre-existing artifacts. 6 Exemption for takings necessary to protect wildlife, livestock, or agriculture from predation. 7 Exemption for scientific, zoological, or religious needs and, in certain circumstances, for falconry. 8 In 1962, Congress extended the Eagle Protection Act to cover golden, as well as bald, eagles, 76 Stat. 1246, and in 1972 penalties under the statute were reinforced, 86 Stat. 1064. On each occasion—especially the latter—the purposes and scheme of the bill were considered. S.Rep. No. 1986, 87th Cong., 2d Sess. (1962); H.R.Rep. No. 1450, 87th Cong., 2d Sess. (1962); S.Rep. No. 92-1159 (1972), U.S.Code Cong. & Admin.News, p. 4285; H.R.Rep. No. 92-817 (1972). Regulations preventing the sale of pre-existing artifacts had been in force for some time preceding these amendments, see 50 CFR § 6.1 (Cum.Supp.1944); 50 CFR §§ 11.1 and 11.8(b) (1964); 50 CFR § 22.2 (1978), although the wording of the 1960 regulation may suggest otherwise, 50 CFR §§ 11.1 and 11.6(b) (1961). 9 See Affidavit of Dr. Alan H. Brush, App. 44-46. 10 Our reading of the Eagle Protection Act is not shaken by the fact that, until 1959, Alaska was exempted from the strictures of § 668. See 54 Stat. 250, amended by § 14, 73 Stat. 143. The fact that eagles could be taken, possessed, sold, and purchased in the Territory of Alaska in no way undercut the general ban on sales in the 48 States; we do not read the pre-1959 Alaska exemption as a license to sell Alaska eagles in the rest of the country, or vice versa. We are also unpersuaded by appellees' argument that the Eagle Protection Act does not apply to feathers that have lost their "identities" as elements in artifacts. This contention is bottomed on the statutory use of the word bird "part" instead of bird "product." The distinction between the terms is immaterial: for example, when Congress amended the Migratory Bird Treaty Act to specify that it applied to bird products as well as bird parts, Pub.L. 93-300, 88 Stat. 190, the Senate Report indicated that the change was a clarification rather than a substantive change in the reach of the law. S.Rep. No. 93-851, p. 3 (1974). 11 The Migratory Bird Treaty Act, passed in 1918, 40 Stat. 755, predates the Eagle Protection Act by 22 years. Originally the legislation implementing a Migratory Bird Convention between Great Britain (on behalf of Canada) and the United States, the Act now implements similar treaties between this country and other nations. See generally Coggins & Patti, The Resurrection and Expansion of the Migratory Bird Treaty Act, 50 Colo.L.Rev. 165, 169-174 (1979); M. Bean, The Evolution of National Wildlife Law 68-74 (1977). 12 The § 703 prohibition is, by its own terms, subject to regulatory exception. See also 16 U.S.C. § 704. 13 "Nothing in this subchapter shall be construed to prevent the breeding of migratory game birds on farms and preserves and the sale of birds so bred under proper regulation for the purpose of increasing the food supply." 14 In fact, the Conference Report accepting the floor amendment that became § 711 was actually withdrawn in order to add language indicating that lawfully bred birds could be sold. See 56 Cong.Rec. 8015 (1918); id., at 8130, 8430. 15 55 Cong.Rec. 5412-5413 (1917) (Senate); 56 Cong.Rec. 7372 (1918) (House). Britain entered into the treaty on behalf of Canada. 16 The Canadian statute indicates that there might be a lawful excuse for possessing or selling birds out of season, but not what such an excuse would be. 17 In 1976, Congress specifically amended the Act to establish a very limited sales exemption for products of animals lawfully owned for commercial purposes before the Act came into effect. Pub.L. 94-359, 90 Stat. 911, amending 16 U.S.C. § 1539. The amendment was circumscribed in scope and merely authorized but did not order the Secretary of Commerce to grant exemptions for pre-Act animal products. 18 In arguing the position that the statute prevents only the sale of illegally taken birds, appellees rely upon the language of the 1972 Migratory Bird Convention with Japan, incorporated into the Migratory Bird Treaty Act in 1974. Pub.L. 93-300, 88 Stat. 190. The Convention provides that "[a]ny sale, purchase or exchange of these [migratory] birds or their eggs, taken illegally, alive or dead, and any sale, purchase or exchange of the products thereof or their parts shall . . . be prohibited." (Emphasis added.) But the language of the Convention, like the terms of the other Conventions, does not carry great weight in the interpretation of the statute. There are material variations in the particulars of each of the Conventions, see Coggins & Patti, supra n. 11, at 173-174; Bean, supra n. 11, at 70-73; it is therefore hazardous to look to any single Convention for definitive resolution of a statutory construction problem. Furthermore, inasmuch as the Conventions represent binding international commitments, they establish minimum protections for wildlife; Congress could and did go further in developing domestic conservation measures. See id., at 74-76. 19 Our interpretation of the statute does not depart from any course of construction adopted by other courts. Although appellees argue that several courts have determined that lawfully taken birds may be sold under the Migratory Bird Treaty Act, we do not read the cases as supporting appellees' position. Two of the cited cases, United States v. Hamel, 534 F.2d 1354 (CA9 1976) (per curiam ), and United States v. Blanket, 391 F.Supp. 15 (W.D.Okl.1975), neither decide nor imply a decision as to the statutory question posed here. Language favorable to appellees in United States v. Aitson, No. 74-1588 (CA10, July 21, 1975), is merely dictum in an unpublished opinion. Contrast also United States v. Richards, 583 F.2d 491 (CA10 1978). United States v. Marks, 4 F.2d 420 (S.D.Tex.1925), did hold it impermissible to punish the sale of birds taken before the Migratory Bird Treaty Act was passed. But that ruling rested upon the court's view that Congress' authority to regulate the birds must rest wholly upon the treaty rather than the commerce power. Whatever the logic of that ruling, the underlying assumption that the national commerce power does not reach migratory wildlife is clearly flawed. See, e. g., Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979). Thus, only two early district Court cases, both authored by the same judge, sustain the statutory proposition advanced by appellees. United States v. Fuld Store Co., 262 F. 836 (D.C.Mont.1920); In re Informations Under Migratory Bird Treaty Act, 281 F. 546 (D.C.Mont.1922). The cases involved no more than a cursory inquiry into the statute, and we find them unconvincing. 20 Indeed, heightened restrictions on the sale or purchase of migratory bird parts were appropriate in light of congressional recognition of the danger to wildlife posed by commercial exploitation. The 1960 amendments to the Migratory Bird Treaty Act specifically addressed that problem by stiffening penalties for the taking of protected birds with intent to sell and for the sale of protected birds. 74 Stat. 866; see H.R.Rep. No. 1787, 86th Cong., 2d Sess. (1960); S.Rep. No. 1779, 86th Cong., 2d Sess. (1960), U.S.Code Cong. & Admin.News, p. 3459. 21 Although this argument appears to have been cast in the District Court in terms of economic substantive due process, before this Court appellees have used the terminology of the Takings Clause. The Secretary has raised the question of appellees' standing to assert a takings claim with respect to their artifacts. He asserts that appellees have not clearly stated that they acquired their property interest in the bird artifacts before the sales ban came into force. If they have not, the Secretary argues, then the "value of any artifacts purchased by appellees after the effective date of the Act had already been diminished by the applicability of the Act." Brief for Appellants 30. This contention is misplaced. Even assuming that appellees have not sufficiently alleged pre-effectiveness possession, they have standing to urge their constitutional claim. Because the regulation they challenge restricts their ability to dispose of their property, appellees have a personal, concrete, live interest in the controversy. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The timing of acquisition of the artifacts is relevant to a takings analysis of appellees' investment-backed expectations, but it does not erect a jurisdictional obstacle at the threshold. Of course, there is no standing to assert a takings claim by those who are merely employed in selling artifacts owned by others. All appellees, however, may face future criminal prosecutions for violations of the statutes, and that, of itself, suffices to give them standing to litigate their interest in the construction of the statutes. 22 It should be emphasized that in Pennsylvania Coal the loss of profit opportunity was accompanied by a physical restriction against the removal of the coal. 23 It is not significant that the statute considered in Everard's Breweries had been passed under the Eighteenth (Prohibition) Amendment. The Court did not suggest that the Amendment gave Congress a special prerogative to override ordinary Fifth Amendment limitations. 24 Although the beverage owner in Jacob Ruppert retained the ability to export his product or to sell it domestically for purposes other than consumption, see 251 U.S., at 303, 40 S.Ct., at 151; Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 157, 40 S.Ct. 106, 108, 64 L.Ed. 194 (1919), the domestic sales ban was undoubtedly commercially crippling. No importance should be attached to the fact that the enactment in Jacob Ruppert was promulgated pursuant to the war power. But cf. United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958). 25 Appellees also briefly argue that the regulations in this case interfere with their right to engage in a lawful occupation. Even if we were inclined to exhume this variant of the theory of substantive due process, it would not be applicable here. Appellees may still sell artifacts that do not consist in part of protected bird products.

34

444 U.S. 37 100 S.Ct. 311 62 L.Ed.2d 199 Vincent R. PERRIN, Jr., Petitioner,v.UNITED STATES. No. 78-959. Argued Oct. 3, 1979. Decided Nov. 27, 1979. Syllabus Petitioner, with others, was indicted for violating and conspiring to violate the Travel Act, 18 U.S.C. § 1952, which makes it a federal offense to travel or use a facility in interstate commerce to commit, inter alia, "bribery . . . in violation of the laws of the State in which committed." Petitioner and his codefendants were charged with using facilities of interstate commerce to promote a commercial bribery scheme in violation of the laws of Louisiana, i. e., a scheme to exploit geological exploration data stolen from a Louisiana-based company by an employee of the company who was promised a percentage of the profits realized from exploitation of the information. Petitioner was convicted, and the Court of Appeals affirmed, rejecting the contention that Congress intended "bribery" in the Travel Act to include only bribery of public officials. Held : Bribery of private employees prohibited by state criminal statutes violates the Travel Act. Pp. 41-50. (a) By 1961, when the Act was enacted as part of a legislative program directed against "organized crime," the common understanding of "bribery" had extended beyond its early common-law definitions limiting it to bribery of public officials. In 42 States and in federal legislation, "bribery" included the bribery of individuals acting in a private capacity. Pp. 41-45. (b) The generic definition of bribery, rather than a narrow common-law definition limited to public officials, was intended by Congress. References in the legislative history to the purposes and scope of the Travel Act, as well as other bills included in the package of "organized crime" legislation aimed at supplementing state enforcement, indicate that Members, Committees, and draftsmen used "bribery" to include payments to private individuals to influence their actions. Congress recognized in 1961 that bribery of private persons was widely used in highly organized criminal efforts to infiltrate and gain control of legitimate businesses, an area of special concern of Congress in enacting the Travel Act. Cf. United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487. Pp. 45-49. (c) Federalism principles do not dictate a narrow interpretation of "bribery" here. So long as the requisite interstate nexus is present (sufficiency of the nexus no longer being at issue in this case), the statute reflects a clear and deliberate intent on Congress' part to alter the federal-state balance in order to reinforce state law enforcement. Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 distinguished. Pp. 49-50. 5 Cir., 580 F.2d 730, affirmed. Leonard B. Boudin, New York City, for petitioner. Stephen M. Shapiro, Washington, D. C., for respondent. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to resolve a Circuit conflict1 on whether commercial bribery of private employees prohibited by a state criminal statute constitutes "bribery . . . in violation of the laws of the State in which committed" within the meaning of the Travel Act, 18 U.S.C. § 1952. 2 * Petitioner Vincent Perrin and four codefendants2 were indicted in the Eastern District of Louisiana for violating the Travel Act, 18 U.S.C. § 1952, and for conspiring to violate the Act, 18 U.S.C. § 371. The Travel Act provides in part: 3 "(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— 4 "(1) distribute the proceeds of any unlawful activity; or 5 "(2) commit any crime of violence to further any unlawful activity; or 6 "(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, 7 "and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. 8 "(b) As used in this subsection 'unlawful activity' means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States." 9 The indictment charged that Perrin and his codefendants used the facilities of interstate commerce for the purpose of promoting a commercial bribery scheme in violation of the laws of the State of Louisiana.3 10 Following a jury trial, Perrin was convicted on the conspiracy count and two substantive Travel Act counts. He received a 1-year suspended sentence on each of the three counts. 11 The Government's evidence at trial was that Perrin, David Levy, and Duffy LaFont engaged in a scheme to exploit geological data obtained from the Petty-Ray Geophysical Co. Petty-Ray, a Louisiana-based company, was in the business of conducting geological explorations and selling the data to oil companies. At trial, company executives testified that confidentiality was imperative to the conduct of their business. The economic value of exploration data would be undermined if its confidentiality were not protected. Moreover, public disclosure after sale would interfere with the contractual rights of the purchaser and would otherwise injure Petty-Ray's relationship with its customers. 12 In June 1975 LaFont importuned Roger Willis, an employee of Petty-Ray, to steal confidential geological exploration data from his employer. In exchange, LaFont promised Willis a percentage of the profits of a corporation which had been created to exploit the stolen information. Willis' position as an analyst of seismic data gave him access to the relevant material, which he in turn surreptitiously provided to the conspirators. Perrin, a consulting geologist, was brought into the scheme to interpret and analyze the data. 13 In late July 1975 Perrin met with Willis, LaFont, and Levy. Perrin directed Willis to call a firm in Richmond, Tex., to obtain gravity maps to aid him in his evaluation.4 After the meeting, Willis contacted the Federal Bureau of Investigation and disclosed the details of the scheme. Willis agreed to permit conversations between himself and the other participants to be recorded. Forty-seven tapes were made, a large number of which were played to the jury. 14 The United States Court of Appeals for the Fifth Circuit affirmed Perrin's conviction, rejecting his contention that Congress intended "bribery" in the Act to include only bribery of public officials. The court also rejected challenges to the constitutionality of the Louisiana commercial bribery statute, to the sufficiency of the interstate nexus to establish jurisdiction under the Travel Act,5 and to the failure of the trial judge to sever petitioner's trial from that of his codefendants.6 580 F.2d 730. II 15 Petitioner argues that Congress intended "bribery" in the Travel Act to be confined to its common-law definition, i. e., bribery of a public official. He contends that because commercial bribery was not an offense at common law, the indictment fails to charge a federal offense.7 16 The Travel Act was one of several bills enacted into law by the 87th Congress as part of the Attorney General's 1961 legislative program directed against "organized crime." Then Attorney General Robert Kennedy testified at Senate and House hearings that federal legislation was needed to aid state and local governments which were no longer able to cope with the increasingly complex and interstate nature of large-scale, multiparty crime. The stated intent was to "dry up" traditional sources of funds for such illegal activities. Legislation Relating to Organized Crime: Hearings on H.R. 468, H.R. 1246, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 87th Cong., 1st Sess. (1961) (hereinafter House Hearings); The Attorney General's Program to Curb Organized Crime and Racketeering: Hearings on S. 1653, S. 1654, etc., before the Senate Committee on the Judiciary, 87th Cong., 1st Sess. (1961) (hereinafter Senate Hearings). 17 To remedy a gap in the authority of federal investigatory agencies, Congress employed its now familiar power under the Commerce Clause of the Federal Constitution to prohibit activities of traditional state and local concern that also have an interstate nexus. See e. g., 18 U.S.C. § 1201 (federal kidnaping statute); 18 U.S.C. § 2312 (interstate transportation of stolen automobiles). That Congress was consciously linking the enforcement powers and resources of the Federal and State Governments to deal with traditional state crimes is shown by its definition of "unlawful activity" as an "enterprise involving gambling liquor . . . , narcotics or controlled substances . . . , or prostitution offenses in violation of the laws of the State in which they are committed or of the United States." The statute also makes it a federal offense to travel or use a facility in interstate commerce to commit "extortion [or] bribery . . . in violation of the laws of the State in which committed or of the United States." Because the offenses are defined by reference to existing state as well as federal law, it is clear beyond doubt that Congress intended to add a second layer of enforcement supplementing what it found to be inadequate state authority and state enforcement. 18 We begin with the language of the Travel Act itself. Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979); TVA v. Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978). A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Burns v. Alcala, 420 U.S. 575, 580-581, 95 S.Ct. 1180, 1184, 43 L.Ed.2d 469 (1975). Therefore, we look to the ordinary meaning of the term "bribery" at the time Congress enacted the statute in 1961. In light of Perrin's contentions we consider first the development and evolution of the common-law definition. 19 At early common law, the crime of bribery extended only to the corruption of judges. 3 E. Coke, Institutes*144,*147 (1628). By the time of Blackstone, bribery was defined as an offense involving a judge or "other person concerned in the administration of justice" and included the giver as well as the receiver of the bribe. 4 W. Blackstone, Commentaries*139-*140 (1765). The writings of a 19th-century scholar inform us that by that time the crime of bribery had been expanded to include the corruption of any public official and the bribery of voters and witnesses as well. J. Stephen, Digest of the Criminal Law 85-87 (1877). And by the 20th century, England had adopted the Prevention of Corruption Act making criminal the commercial bribery of agents and employees. Act of 1906, 6 Edw. 7, ch. 34, amended by the Prevention of Corruption Act of 1916, 6 & 7 Geo. 5, ch. 64. 20 In this country, by the time the Travel Act was enacted in 1961, federal and state statutes had extended the term bribery well beyond its common-law meaning. Although Congress chose not to enact a general commercial bribery statute, it perceived abuses in the areas it found required particular legislation. Federal statutes specifically using "bribery" in the sense of payments to private persons to influence their actions are the Transportation Act of 1940, 49 U.S.C. § 1(17)(b) (prohibiting the "bribery" of agents or employees of common carriers), and the 1960 Amendments to the Communications Act, 47 U.S.C. § 509(a)(2) (prohibiting the "bribery" of television game show contestants).8 21 A similar enlargement of the term beyond its common-law definition manifested itself in the states prior to 1961. Fourteen States had statutes which outlawed commercial bribery generally.9 An additional 28 had adopted more narrow statutes outlawing corrupt payments to influence private duties in particular fields, including bribery of agents, common carrier and telegraph company employees, labor officials, bank employees, and participants in sporting events.10 22 In sum, by 1961 the common understanding and meaning of "bribery" had extended beyond its early common-law definitions. In 42 States and in federal legislation, "bribery" included the bribery of individuals acting in a private capacity.11 It was against this background that the Travel Act was passed. III 23 On a previous occasion we took note of the sparse legislative history of the Travel Act. Rewis v. United States, 401 U.S. 808, 811, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). The record of the hearings and floor debates discloses that Congress made no attempt to define the statutory term "bribery," but relied on the accepted contemporary meaning. There are ample references to the bribery of state and local officials, but there is no indication that Congress intended to so limit its meaning. Indeed, references in the legislative history to the purposes and scope of the Travel Act, as well as other bills under consideration by Congress as part of the package of "organized crime" legislation aimed at supplementing state enforcement, indicate that Members, Committees, and draftsmen used "bribery" to include payments to private individuals to influence their actions. 24 Senator Keating, for instance, expressed concern about the influence of gamblers and racketeers on athletics. He indicated his belief that the sports bribery scandals could be dealt with under the Travel Act. See Senate Hearings 327-328. Attorney General Kennedy in his opening statement in both the Senate and House hearings in 1961 expressed his concern that "gamblers have bribed college basketball players to shave points on games." House Hearings 25; Senate Hearings 6. In the consideration of a related bill to grant immunity to witnesses testifying in labor racketeering cases, repeated reference was made to the need to curb "bribery" of labor and management officials involved in labor disputes. See House Hearings 84. It is not suggested that the references to the immunity bill were intended to define the content of "bribery" in the Travel Act, yet they do indicate that Congress did not use the word in the narrow, common-law sense. 25 Petitioner also contends that commercial bribery is a "management" or "white-collar" offense not generally associated with organized criminal activities. See United States v. Brecht, 540 F.2d 45, 50 (CA2 1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977). From this, he argues that Congress could not have intended to encompass commercial bribery within § 1952. 26 The notion that bribery of private persons is unrelated or unknown to what is called "organized crime" has no foundation. The hearings on the Travel Act make clear that a major area of congressional concern was with the infiltration by organized crime into legitimate activities. House Hearings 2 (remarks of Chairman Celler). Legitimate businesses had come to be used as a means for highly organized criminal activities to hide income derived from illegal sources. Moreover, Committees investigating these activities found that those who infiltrated legitimate businesses often used the same criminal techniques to expand their operations and sales in the legitimate enterprises. Thus, in discussing the infiltration of organized groups into nongambling amusement games, the McClellan Committee reported that the organization achieved its holdings in legitimate business by "force, terror and the corruption of management, union and public officials." Final Report of the Select Committee on Improper Activities in the Labor or Management Field, S.Rep.No. 1139, 86th Cong., 2d Sess., 856 (1960). 27 Indeed, the McClellan Committee in 1960, like the Kefauver Committee in 1950-1951, documented numerous specific instances of the use of commercial bribery by these organized groups to control legitimate businesses. The McClellan Committee, for example, reported that a particular "shylocking" operation began in New York when persons were able to obtain a substantial unsecured line of credit at a New York bank "by making gifts to two of the bank officials." Id., at 772-773. The Kefauver Committee explored, among numerous others, the relationship between a high-ranking official of the Ford Motor Co. and persons believed to be members of organized illegal groups. Its evidence suggested that organized crime had exploited that relationship to obtain Ford dealerships and hauling contracts. Third Interim Report of the Special Committee to Investigate Organized Crime in Interstate Commerce, S.Rep. No. 307, 82d Cong., 1st Sess., 75 (1951). See also id., at 160-161 (expressing concern about "corruption of college basketball players who could be talked into controlling the score of a game").12 28 There can be little doubt that Congress recognized in 1961 that bribery of private persons was widely used in highly organized criminal efforts to infiltrate and gain control of legitimate businesses, an area of special concern of Congress in enacting the Travel Act. 29 Our approach to ascertaining the meaning of "bribery" must be guided by our holding in United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969), where the same provision of the Act under review in this case was before the Court. There, the respondents were charged with traveling in interstate commerce with the intent to engage in extortion contrary to the laws of Pennsylvania in violation of § 1952. Pennsylvania's "extortion" statute applied only to acts committed by public officials. However, the State had outlawed the particular conduct engaged in by the appellees under a statute entitled "blackmail." Nardello and his codefendants argued, as Perrin does here, that Congress intended to use the word "extortion" in its common-law sense, which would be limited to conduct by public officials. 30 An opinion by Mr. Chief Justice Warren for a unanimous Court rejected the argument limiting the definition of extortion to its common-law meaning, holding that Congress used the term in a generic and contemporary sense. The Court noted that in 1961 the Attorney General had pressed Congress to include "shakedown rackets," "shylocking," and labor extortion, which were methods frequently used by organized groups to generate income and infiltrate legitimate activities. 31 In rejecting Nardello's argument that Congress intended to adopt the common-law meaning of the term "extortion," the Court stated: 32 "In light of the scope of the congressional purpose we decline to give the term 'extortion' an unnaturally narrow reading . . . and thus conclude that the acts for which appellees have been indicted fall within the generic term extortion as used in the Travel Act." 393 U.S., at 296, 89 S.Ct., at 539. 33 We are similarly persuaded that the generic definition of bribery, rather than a narrow common-law definition, was intended by Congress.13 IV 34 Petitioner also contends that a broad interpretation of the meaning of bribery will have serious federalism implications. He relies particularly on Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). See alsoUnited States v. Bass, 404 U.S. 336, 349-350, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). The factual setting in Rewis was very different from this case. There, we were confronted with a Travel Act prosecution of the proprietors of a gambling establishment located a few miles south of the Georgia-Florida state line. There was no evidence that Rewis had employed interstate facilities to conduct his numbers operation; moreover, he could not readily identify which customers had crossed state lines. The District Court had instructed the jury that if it found that third persons traveled from Georgia to Florida to place bets, that would be sufficient to supply the interstate commerce element necessary to sustain the conviction of the proprietors under the Act. In reversing, we cautioned that in that setting "an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited federal police resources, and . . . would transform relatively minor state offenses into federal felonies." 401 U.S., at 812, 91 S.Ct., at 1059. 35 Reliance on the federalism principles articulated in Rewis to dictate a narrow interpretation of "bribery" is misplaced. Our concern there was with the tenuous interstate commerce element. Looking at congressional intent in that light, we held that Congress did not intend that the Travel Act should apply to criminal activity within one State solely because that activity was sometimes patronized by persons from another State. Ibid. 36 Here, the sufficiency of the interstate nexus is no longer at issue. Rather, so long as the requisite interstate nexus is present, the statute reflects a clear and deliberate intent on the part of Congress to alter the federal-state balance in order to reinforce state law enforcement. In defining an "unlawful activity," Congress has clearly stated its intention to include violations of state as well as federal bribery law. Until statutes such as the Travel Act contravene some provision of the Constitution, the choice is for Congress, not the courts. 37 We hold that Congress intended "bribery . . . in violation of the laws of the State in which committed" as used in the Travel Act to encompass conduct in violation of state commercial bribery statutes. Accordingly, the judgment of the Court of Appeals is 38 Affirmed. 39 Mr. Justice WHITE took no part in the decision of this case. 1 See United States v. Brecht, 540 F.2d 45 (CA2 1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977) (holding no violation of the Travel Act); United States v. Pomponio, 511 F.2d 953 (CA4), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975) (holding a violation of the Travel Act). 2 Also indicted with petitioner were Duffy LaFont, Jr., David Levy, Albert Izuel, and Jim Haddox. Proceedings against Izuel and Haddox were severed by the trial court, and the charges were subsequently dismissed. 3 Louisiana's commercial bribery statute, La.Rev.Stat.Ann. § 14.73 (West 1974), provides in part: "Commercial bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any private agent, employee, or fiduciary, without the knowledge and consent of the principal or employer, with the intent to influence such agent's, employee's, or fiduciary's action in relation to the principal's or employer's affairs." 4 The Government claimed at trial that Perrin purposefully chose an out-of-state supplier because it would be less likely to notice leasing activities in Louisiana. 5 Phone calls from Louisiana to Richmond, Tex., by Willis and Levy, and the subsequent shipment of materials by the Richmond firm to Louisiana by Continental Bus were held to provide the interstate nexus jurisdictionally required to support the Travel Act prosecutions. 6 LaFont and Levy were also convicted; the Court of Appeals affirmed. Petitions for certiorari have been filed by both LaFont, No. 78-5930, and Levy, No. 78-5855, and are pending before this Court. 7 Perrin's other contentions, including a claim that the asserted ambiguity of the Travel Act resulted in failure to provide adequate notice that his conduct violated federal as well as Louisiana laws, do not merit discussion. 8 Examples of federal statutes which make illegal the giving or receiving of payments to influence private duties but without using the word bribery are found at 18 U.S.C. § 215 (prohibiting payments to bank officers to influence their consideration of loans); 41 U.S.C. § 51 (prohibiting payments to contractors to secure subcontracts); and 29 U.S.C. § 186 (prohibiting payments to labor union officials). 9 The statutes are currently codified at Conn.Gen.Stat. §§ 53a-160, 53a-161 (West 1972) (enacted 1905); La.Rev.Stat.Ann. § 14.73 (West 1974) (enacted 1920); Mass.Gen.Laws Ann., ch. 271, § 39 (West 1970) (enacted 1904); Mich.Comp.Laws § 750.125 (1968) (enacted 1905); Miss.Code Ann. §§ 97-11-11, 97-11-13 (1973) (enacted 1857); Neb.Rev.Stat. § 28-710 (1975) (enacted 1907); N.Y.Penal Law §§ 180.00-180.03 (McKinney Supp. 1978-1979) (enacted 1905); N.C.Gen.Stat. § 14-353 (1969) (enacted 1913); Pa.Stat.Ann., Tit. 18, § 4108 (Purdon 1973) (enacted 1939); R.I.Gen.Laws §§ 11-7-3, 11-7-4 (1970) (enacted 1881); S.C.Code § 16-17-540 (1977) (enacted 1905); Vt.Stat.Ann., Tit. 13, § 1106 (1974) (enacted 1904); Va.Code § 18.2-444 (1975) (enacted 1950); Wis.Stat. § 134.05 (1978) (enacted 1905). Of these 14, most had also enacted other private bribery statutes reaching labor, banking, or sports bribery. 10 The current codifications of the statutes are found at Ala.Code § 13-4-9 (1977) (sports); Alaska Stat.Ann. § 42.20.110 (1976) (telegraph agent); Ariz.Rev.Stat.Ann. § 4-243 (1974), § 13-2309 (1978) (alcoholic beverages, sports); Ark.Stat.Ann. § 41-3288 (1977), § 67-707 (1966) (sports, banking); Cal.Penal Code Ann. §§ 337b-337e, 641 (West 1970) and Cal.Fin.Code Ann. § 3350 (West 1968) (sports, telegraph agent, banking); Colo.Rev.Stat. § 18-5-403 (1978) (sports); Del.Code Ann., Tit. 28, § 701-704 (1975) (sports); Fla.Stat. § 838.12 (1976) (sports); Haw.Rev.Stat. § 708-880 (1976) (sports); Ill.Rev.Stat., ch. 38, §§ 29-1 to 29-3 (1977) (sports); Ind.Code §§ 35-18-10-1, 35-18-10-2, 35-18-12-1, 35-18-12-2 (1976) (common carrier, sports); Iowa Code § 722.3 (1979) (sports); Ky.Rev.Stat. § 244.600 (1972), § 518.040-050 (1975) (alcoholic beverages, sports); Me.Rev.Stat.Ann., Tit. 17, § 3601 (1965) (labor); Md.Ann.Code, Art. 27, §§ 24, 25 (1976) (sports); Minn.Stat. § 609.825 (1964) (sports); Mo.Rev.Stat. § 570.155 (1978) (sports); Mont.Code Ann. § 94-35-221 (1978) (telegraph agent); Nev.Rev.Stat. §§ 614.140, 707.120 (1973) (labor, telegraph agent); N.J.Stat.Ann. §§ 2A:91-1, 2A:93-7, 2A:93-10 (West 1969) (banking, labor, sports); Ohio Rev.Code Ann. § 2915.06 (1975) (sports); Okla.Stat., Tit. 21, §§ 399, 400 (1971) (sports); Ore.Rev.Stat. § 165.515 (1977) (telegraph agent); S.D.Comp.Laws Ann. § 36-18-28 (1967) (architects); Tenn.Code Ann. §§ 39-821, 39-824 to 39-826 (1975) (common carriers, sports); Tex.Penal Code Ann. §§ 32.43, 32.44 (1974) (attorneys, sports); Wash.Rev.Code §§ 49.44.020, 67.04.010 to 67.04.080 (1976) (sports, labor); W.Va.Code § 61-10-22 (1977) (sports). Since 1961, of the eight States which had not adopted nonpublic official bribery statutes, Georgia, Kansas, New Hampshire, New Mexico, North Dakota, and Wyoming now have such statutes. Moreover, a number of the States which did not have a commercial bribery statute in 1961 do so today. 11 See also ALI, Model Penal Code § 223.10, pp. 113-117, Comments (Tent. Draft No. 11, 1960) ("all relations which are recognized in a society as involving special trust should be kept secure from the corrupting influence of bribery"); ALI, Model Penal Code § 224.8 (Prop.Off.Draft 1962) (containing a specific prohibition against commercial bribery). 12 Although congressional hearings subsequent to the passage of the Travel Act are not relied on, they do support the conclusion that bribery of private persons is a familiar tool of organized criminal groups. See Organized Crime, Stolen Securities: Hearings before the Subcommittee on Investigations of the Senate Committee on Government Operations, 92d Cong., 1st Sess., 675-683 (1971) (bribing of employees of banking institutions to accept pledges of worthless and stolen securities and of employees of brokerage houses to steal securities); Organized Crime, Techniques for Converting Worthless Securities into Cash: Hearings before the House Select Committee on Crime, 92d Cong., 1st Sess., 3, 242, 292-293, 361 (1971) (bribing of insurance company presidents to buy worthless securities for the company); Organized Crime, Securities: Thefts and Frauds: Hearings before the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations, 93d Cong., 1st Sess., 183, 239-240, 467-468, 475-476 (1973) (bribing of certified public accountants and employees in financial institutions and brokerage houses). 13 Our analysis leads us to reject the application of the maxim of statutory construction that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity. Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). Although Bell states the general rule in cases where the courts are faced with genuine ambiguity, the rule of lenity applies " 'when we are uncertain about the statute's meaning,' " and is " 'not to be used in complete disregard of the purpose of the legislature.' " United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 1116, 55 L.Ed.2d 349 (1978), quoting Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 1970, 52 L.Ed.2d 582 (1977). Nardello leaves little room for uncertainty about the statute's meaning.

01

444 U.S. 69 100 S.Ct. 328 62 L.Ed.2d 225 P. C. PFEIFFER COMPANY, INC., et al., Petitioners,v.Diverson FORD et al. No. 78-425. Argued March 20, 1979. Reargued Oct. 1, 1979. Decided Nov. 27, 1979. Syllabus Section 2(3) of the Longshoremen's and Harbor Workers' Compensation Act, as amended in 1972, defines an employee as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations. . . ." The question in this case is whether two workers were engaged in "maritime employment," as defined by § 2(3), when they sustained injuries for which they sought compensation. Respondent Ford was injured on a public dock in the Port of Beaumont, Tex., while employed by petitioner P. C. Pfeiffer Co. and while fastening onto railroad flatcars military vehicles that had been delivered to the port by ship, stored, and then loaded the day before the accident onto the flatcars. Respondent Bryant, while working as a cotton header for petitioner Ayers Steamship Co. in the Port of Galveston, Tex., was injured while unloading a bale of cotton from a dray wagon into a pier warehouse. Cotton arriving at the port from inland shippers enters storage in cotton compress-warehouses, then goes by dray wagon to pier warehouses, and later is moved by longshoremen from the warehouses onto ships. Both Ford's and Bryant's claims for coverage were denied by Administrative Law Judges applying the "point of rest" doctrine whereby maritime employment would include only the portion of the unloading process that takes place before the stevedoring gang places cargo onto the dock and the portion of the loading process that takes place to the seaside of the last point of rest on the dock. The Benefits Review Board reversed both decisions, and the Court of Appeals affirmed. On remand for reconsideration in light of this Court's decision in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320, which rejected the "point of rest" theory, the Court of Appeals reaffirmed its earlier opinion. Held: Ford and Bryant were engaged in maritime employment at the time of their injuries because they were engaged in intermediate steps of moving cargo between ship and land transportation. (a) Petitioners' position that the Act covers only workers who are working or who may be assigned to work over the water itself is inconsistent with the language and structure of the Act, which contains distinct situs and status requirements. Section 3(a) of the Act allows recovery for an injury suffered on navigable waters or certain adjoining areas landward of the water's edge, thus defining the broad geographic coverage of the Act, whereas § 2(3) defines the Act's occupational requirements, referring to the nature of a worker's activities. The legislative history also shows that Congress intended the term "maritime employment" in § 2(3) to refer to status rather than situs. In adopting an occupational test that focuses on loading and unloading, Congress anticipated that some persons who work only on land would receive benefits under the Act. Cf. Northeast Marine Terminal Co. v. Caputo, supra. Pp. 77-81. (b) Ford and Bryant are the kind of land-based employees that Congress intended to encompass within the term "maritime employment." Both men engaged in the type of duties that longshoremen perform in transferring goods between ship and land transportation. Under § 2(3), workers doing tasks traditionally performed by longshoremen are within the purview of the Act. The crucial factor is the nature of the activity to which a worker may be assigned. Persons moving cargo directly from ship to land transportation are engaged in maritime employment, and a worker responsible for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process. Pp. 81-84. 575 F.2d 79, affirmed. E. D. Vickery, Houston, Tex., for petitioners. Peter Buscemi, Washington, D. C., pro hac vice, by special leave of Court, for respondents. Mr. Justice POWELL delivered the opinion of the Court. 1 The question in this case is whether two workers were engaged in "maritime employment," as defined by § 2(3) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1425, as amended, 86 Stat. 1251, 33 U.S.C. § 902(3), when they sustained injuries for which they seek compensation. 2 * On April 12, 1973, Diverson Ford accidentally struck the middle finger of his left hand with a hammer while working on a public dock in the Port of Beaumont, Tex. On the day of his injury, Ford was employed by the P. C. Pfeiffer Co. to fasten military vehicles onto railroad flatcars. The vehicles had been delivered to the port by ship a number of days before the accident, stored, and then loaded onto flatcars the day before. The flatcars would take the vehicles to their inland destination. 3 Ford was working out of the warehousemen's local on the day of the accident. Agreements between employers, the warehousemen's union, and the longshoremen's union limit the tasks that warehousemen may perform in the Port of Beaumont. Warehousemen may not move cargo directly from a vessel either to a point of rest in storage or to a railroad car. Nor may they move cargo from a shoreside point of rest directly onto a vessel. These jobs are reserved for longshoremen. App. 10-11. 4 On May 2, 1973, Will Bryant was injured while unloading a bale of cotton from a dray wagon into a pier warehouse. Bryant was working as a cotton header for the Ayers Steamship Co. in the Port of Galveston, Tex. Cotton arrives at the port from inland shippers and enters storage in cotton compress-warehouses. The cotton then goes by dray wagon to pier warehouses where a driver and two cotton headers unload and store it. Longshoremen later move the cotton from the pier warehouses onto ships. 5 Contractual agreements between employers, the cotton headers' union, and the longshoremen's union distinguish the work that cotton headers may perform from the tasks assignable to longshoremen. Cotton headers may only load cotton off dray wagons into the pier warehouses or move cotton within a pier warehouse. Cargo moved directly from the ship to shoreside transportation, or directly from shoreside transportation to the ship, is handled solely by longshoremen. Id., at 25, 48-49, 57-58, 60-61. II 6 Before 1972, neither Ford nor Bryant could have received compensation under the Longshoremen's and Harbor Workers' Compensation Act because his injury occurred on land. The pre-1972 Act was simply an effort to fill the gap in workmen's compensation coverage created by this Court's decision in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), which held that state compensation systems could not reach longshoremen injured seaward of the water's edge.1 A single situs requirement in § 3(a) of the Act governed the scope of its coverage. That requirement limited coverage to workers whose "disability or death result[ed] from an injury occurring upon the navigable waters of the United States (including any dry dock) . . . ." 44 Stat. 1426. In light of Jensen and the limited purpose of the Act, the situs test was understood to draw a sharp line between injuries sustained over water and those suffered on land. Thus, in Nacirema Operating Co. v. Johnson, 396 U.S. 212, 218-220, 90 S.Ct. 347, 351-352, 24 L.Ed.2d 371 (1969), this Court held that the Act did not extend to injuries occurring on a pier attached to the land. Although the Court recognized that inequities might result from rigid adherence to the Jensen line, the Court concluded that "[t]he invitation to move that line landward must be addressed to Congress, not to this Court." 396 U.S., at 224,2 90 S.Ct. at 354. 7 Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (1972 Act).3 The Act now extends coverage to more workers by replacing the single-situs requirement with a two-part situs and status standard. The newly broadened situs test provides compensation for an "employee" whose disability or death "results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)." § 3(a), 33 U.S.C. § 903(a). The status test defines an employee as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker . . . ." § 2(3), 33 U.S.C. § 902(3). To be eligible for compensation, a person must be an employee as defined by § 2(3) who sustains injury on the situs defined by § 3(a). III 8 This Court first considered the scope of § 2(3)'s status requirement in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). That case concerned the claims of two workers, Blundo and Caputo. Blundo was on a pier checking cargo as it was removed from a container when he suffered a fall.4 Caputo sustained injury while rolling a loaded dolly into a consignee's truck.5 We recognized that neither the 1972 Act nor its legislative history states explicitly whether workers like Blundo and Caputo, who handle cargo between sea and land transportation, are employees within the meaning of § 2(3). The Court found, however, that consideration of the legislative history in light of the remedial purposes behind the expansion of coverage reveals a clear intent to cover such workers. 432 U.S., at 267-278, 97 S.Ct., at 2359-2365. 9 One of the reasons Congress expanded coverage in 1972 was that containerization permits loading and unloading tasks traditionally conducted aboard ship to be performed on the land. Such tasks are "longshoring operations." Id., at 270-271, 97 S.Ct., at 2360-2361. Blundo's job of checking and marking goods as they were removed from a container was an integral part of the unloading process even though the container had been removed from a ship and trucked to a different pier before being emptied. Therefore, Blundo was an employee within the meaning of § 2(3). 432 U.S., at 271, 97 S.Ct., at 2361. 10 Caputo, working as part of the traditional process of moving goods from ship to land transportation, was unaffected by the advent of containerization. But the Court recognized another congressional purpose relevant to the resolution of Caputo's claim. Congress wanted to ensure that a worker who could have been covered part of the time by the pre-1972 Act would be completely covered by the 1972 Act. By enlarging the covered situs and enacting the status requirement, Congress intended that a worker's eligibility for federal benefits would not depend on whether he was injured while walking down a gangway or while taking his first step onto the land. Congress therefore counted as "longshoremen" persons who spend "at least some of their time in indisputably longshoring operations." Id., at 273, 97 S.Ct., at 2362. Caputo, who could have been assigned to loading containers and barges as well as trucks, was such a person. Ibid. Accordingly, the Court did not have to decide whether Caputo's work was "maritime employment" simply because he "engaged in the final steps of moving cargo from maritime to land transportation: putting it in the consignee's truck." Id., at 272, 97 S.Ct., at 2362. 11 In holding that Blundo and Caputo were covered by the Act, Northeast Marine Terminal explicitly rejected the "point of rest" theory. Under that test, maritime employment would include only the portion of the unloading process that takes place before the stevedoring gang places cargo onto the dock. For example, a worker who carried cargo directly from a ship to a warehouse or a truck would be engaged in maritime employment, but one who carried cargo from a warehouse to a truck would not. In loading operations, only workers employed to the seaside of the last point of rest would be covered. 12 We explained that application of the point-of-rest test would be inconsistent with congressional intent. First, the concept, although well known in the maritime industry, was not mentioned in the Act or its legislative history. Second, the standard excludes from coverage employees like Blundo whose work was shifted landward by the use of containers. Third, the test conflicts with the express purpose of the Act because it allows workers to walk in and out of coverage as their work moves to different sides of a point of rest. Id., at 275-276, 97 S.Ct., at 2363. In sum, "[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage [was] incapable of defeating our conclusion that Blundo and Caputo [were] 'employees.' " Id., at 278-279, 97 S.Ct., at 2365. 13 Most of the litigation in the present case took place before our decision in Northeast Marine Terminal. At the initial administrative level, both Ford's and Bryant's claims for coverage were denied by Administrative Law Judges applying the point-of-rest doctrine. The Benefits Review Board reversed both decisions. The Court of Appeals for the Fifth Circuit affirmed. Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (1976). The court rejected the point-of-rest theory, holding instead that the 1972 Act covers all workers directly involved in the work of loading, unloading, repairing, building, or breaking a vessel. Id., at 539-540. The court found that "Ford's work of fastening the vehicles to the flat cars was . . . the last step in transferring this cargo from sea to land transportation," id., at 543, and that Bryant's work "was an integral part of the ongoing process of moving cargo between land transportation and a ship," id., at 544. Accordingly, the Court of Appeals concluded that both men were covered by the 1972 Act. 14 We granted certiorari, vacated, and remanded for reconsideration in light of Northeast Marine Terminal. 433 U.S. 904, 97 S.Ct. 2967, 53 L.Ed.2d 1088 (1977). On remand, the Fifth Circuit reaffirmed the reasoning of its earlier opinion. 575 F.2d 79, 80 (1978) (per curiam ). We again granted certiorari, 439 U.S. 978, 99 S.Ct. 562, 58 L.Ed.2d 648 (1978), and we now affirm. IV 15 Petitioners urge that Ford and Bryant are not covered by the 1972 Act because they were not engaged in "maritime employment."6 Petitioners suggest that a person is engaged in maritime employment only if, on the day of his injury, he could have been assigned to perform work upon the navigable waters of the United States. By navigable waters, the petitioners do not mean the broad situs defined in § 3(a), as amended by the 1972 Act; rather they refer to places seaward of the Jensen line. In other words, petitioners argue that the 1972 Act covers only workers who are working or who may be assigned to work over the water itself. They say that this formulation follows congressional intent to cover all workers who, before 1972, could have walked in and out of coverage during any given day.7 16 Petitioners' position is plainly inconsistent with the language and structure of the 1972 Act. The Act, as noted above, contains distinct situs and status requirements. The situs test of § 3(a) allows recovery for an injury suffered on navigable waters or certain adjoining areas landward of the Jensen line. This test defines the broad geographic coverage of the Act. Section 2(3) restricts the scope of coverage by further requiring that the injured worker must have been engaged in "maritime employment." This section defines the Act's occupational requirements. The term "maritime employment" refers to the nature of a worker's activities. Thus, § 2(3) uses the phrase "longshorem[e]n or other person[s] engaged in longshoring operations" as one example of workers who engage in maritime employment no matter where they do their job. Since § 3(a) already limits the geographic coverage of the Act, § 2(3) need not provide that longshoremen are covered only if they work in certain places. The use of the term "maritime employment" in § 2(3), therefore, provides no support for the proposition that the statutory definition of an employee imports a geographic limitation narrower than the one defined in § 3(a).8 17 The difficulty with petitioners' position becomes even plainer when their interpretation is applied to a single statutory provision that contains both the status and the situs requirement. Section 2(4), 33 U.S.C. § 902(4), defines an "employer" as one "any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States" as broadly defined by § 3(a). If the term "maritime employment" referred only to work that might take employees seaward of the Jensen line, then the broader situs test in the final clause of this section would become virtually superfluous. We decline the invitation to construe "maritime employment" so as to create two differing situs requirements in a single sentence. By understanding the term "maritime employment" to embody an occupational rather than a geographic concept, we give the two phases in § 2(4) distinct and consistent meanings. 18 The discussion of coverage in the legislative history9 also shows that Congress intended the term "maritime employment" to refer to status rather than situs. Committees in both Houses of Congress recognized: 19 "To take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus, employees whose responsibility is only to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo."10 20 This legislative history discusses workers solely in terms of what they are doing and never in terms of where they are working.11 21 In adopting an occupational test that focuses on loading and unloading, Congress anticipated that some persons who work only on land would receive benefits under the 1972 Act. An obvious example of such a worker is Blundo. He was checking and marking cargo from a container that had been removed from a ship and moved overland to another pier before it was opened. Without any indication that he ever would be required to set foot on a ship, this Court held that he was covered by the 1972 Act because this type of work was maritime employment. Northeast Marine Terminal Co., 432 U.S., at 271, 97 S.Ct., at 2361. 22 Land-based workers who do not handle containerized cargo also may be engaged in loading, unloading, repairing, or building a vessel. The Senate Subcommittee on Labor heard testimony that 30%-35% of ship repair work is done on land.12 Furthermore, the usual longshoring crew includes some men whose duties may be carried out solely on the land. A typical loading gang consist of persons who move cargo from a warehouse to the side of a ship, frontmen who attach the load to the ship's gear for lifting aboard the vessel, and a hold gang which stores cargo inside the ship.13 Although the workers who carry the cargo to shipside and the frontmen who attach the cargo to the lifting devices need not board a ship to carry out their duties, they are incontestably longshoremen directly engaged in the loading process. Even the petitioners concede that some land-based workers are covered by the 1972 Act.14 V 23 The issue in this case thus becomes whether Ford and Bryant are the kind of land-based employees that Congress intended to encompass within the term "maritime employment." Both men engaged in the type of duties that longshoremen perform in transferring goods between ship and land transportation. If the cotton that Bryant was unloading had been brought directly from the compress-warehouse to a ship, his task of moving cotton off a dray wagon would have been performed by a longshoreman.15 Similarly, longshoremen—not warehousemen like Ford—would fasten military vehicles onto railroad flatcars if those vehicles went directly from a ship to the railroad cars.16 The only basis for distinguishing Bryant or Ford from longshoremen who otherwise would perform the same work is the point-of-rest theory. That is, longshoremen in the Ports of Beaumont and Galveston would have performed the work done by Bryant and Ford had the cargo moved without interruption between land and sea transportation. Our unanimous opinion in Northeast Marine Terminal expressly decided that application of the point-of-rest test to define the scope of maritime employment would be contrary to congressional intent. Id., at 275-279, 97 S.Ct., at 2363-2365. Thus, there is no principled basis for distinguishing Ford and Bryant from longshoremen who have been injured while performing the same tasks. 24 We believe that § 2(3)'s explicit use of the terms "longshoreman" and "other person engaged in longshoring operations" to describe persons engaged in maritime employment demonstrates that workers doing tasks traditionally performed by longshoremen are within the purview of the 1972 Act. We do not suggest that the scope of maritime employment depends upon the vagaries of union jurisdiction. 432 U.S., at 268, n. 30, 97 S.Ct., at 2359, n. 30. Instead, the crucial factor is the nature of the activity to which a worker may be assigned. Persons moving cargo directly from ship to land transportation are engaged in maritime employment. Id., at 267, n. 28, 97 S.Ct., at 2359, n. 28.17 A worker responsible for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process. We therefore hold that Ford and Bryant were engaged in maritime employment because they were engaged in intermediate steps of moving cargo between ship and land transportation.18 25 Our decision serves the intent of Congress in creating the status requirement. First, it focuses upon the nature, not the location, of employment. Second, it does not extend coverage to all workers in the situs area. There is no doubt for example, that neither the driver of the truck carrying cotton to Galveston nor the locomotive engineer transporting military vehicles from Beaumont was engaged in maritime employment even though he was working on the marine situs. Such a person's "responsibility is only to pick up stored cargo for further trans-shipment." S.Rep. No. 92-1125, p. 13 (1972); H.R.Rep. No. 92-1441, p. 11 (1972), U.S.Code Cong. & Admin.News 1972, p. 4708; see Northeast Marine Terminal Co. v. Caputo, 432 U.S., at 267, 275, n. 37, 97 S.Ct., at 2359, 2363, n. 37. 26 Our decision today also serves the broader congressional purpose of expanding coverage. Congress intended to apply a simple, uniform standard of coverage. Adoption of the petitioners' test would conflict with that goal, because any individual worker's coverage would depend upon the assignment policies of his employer. For example, a land-based worker would be covered if his employer allowed him to alternate assignments with co-workers who work on the water, but he would not be covered if the employer never allowed him to board a ship. Congress did not intend the Act's coverage to shift with the employer's whim. See id., at 276, n. 38, 97 S.Ct., at 2363, n. 38. In contrast, a definition of maritime employment that reaches any worker who moves cargo between ship and land transportation will enable both workers and employers to predict with reasonable assurance who on the situs is protected by the 1972 Act. 27 Because the Court of Appeals correctly determined that Ford and Bryant were engaged in maritime employment at the time of their injuries, its judgment is 28 Affirmed. 1 A State, however, could compensate a worker who was injured while engaged in "maritime but local" activity. See Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476-477, 42 S.Ct. 157, 158, 66 L.Ed. 321 (1922); Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210 (1921). See generally G. Gilmore & C. Black, The Law of Admiralty § 6-49 (2d ed. 1975). 2 Nacirema Operating Co. v. Johnson, denied compensation to three workers who attached cargo in railroad cars to ships' cranes for loading onto a vessel. When a loaded crane swung back toward land, the men were knocked onto a pier or crushed against a railroad car. A fourth case considered in the Court of Appeals along with the three cases consolidated in Nacirema Operating Co. vividly illustrated the arbitrariness of the Jensen line. The lower courts held that the Act covered a longshoreman who fell from his workplace on a pier into the water, where he drowned. See Marine Stevedoring Corp. v. Oosting, 238 F.Supp. 78 (ED Va.1965), aff'd, 398 F.2d 900 (CA4 1968) (en banc). The only difference between this longshoreman and the three workers in Nacirema Operating Co. was where his body fell. See Nacirema Operating Co. v. Johnson, 396 U.S., at 224-225, 90 S.Ct., at 354-355 (Douglas, J., dissenting). 3 86 Stat. 1251. The primary purposes of the 1972 Amendments were to raise the amount of compensation available under the Act, to abolish the longshoremen's seaworthiness remedy against the owners of a vessel, and to outlaw shipowners' claims for indemnification from stevedores. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261-262, and n. 18, 97 S.Ct. 2348, 2355-2356, and n. 18, 53 L.Ed.2d 320 (1977). 4 When a vessel carrying containers reaches port, the loaded containers are removed from the ship intact and moved overland. If a container holds cargo for more than one consignee, workers unload the goods for shipment inland. See id., at 252-253, and n. 2, 97 S.Ct., at 2351, and n. 2. 5 Caputo was working as a part of the traditional break-bulk cargo handling process in which each item of cargo is separately taken out of the hold of a vessel and moved ashore. Id., at 255, 272, 97 S.Ct., at 2352, 2361. 6 Petitioners do not dispute that both accidents took place on the situs defined by § 3(a), 33 U.S.C. § 903(a), or that both men worked for statutory employers within the meaning of § 2(4), 33 U.S.C. § 902(4). Brief for Petitioners 7, n. 11, 28, n. 62. 7 At oral argument, petitioners conceded that some workers who never set foot on a vessel are covered by § 2(3). Petitioners acknowledged that a land-based longshoreman operating a crane that lifts goods from ship to dock is covered by the Act, although they argued that such a worker is not engaged in maritime employment. Tr. of Oral Arg. 10-11. Petitioners apparently assume that a person engaged in "longshoring operations" is not necessarily engaged in "maritime employment." See id., at 14-16. But the language of § 2(3) provides that an employee is "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker. . . ." 33 U.S.C. § 902(3). The petitioners' argument supposes that the word "including" means "and" or "as well as." We understand the word "including" to indicate that "longshoring operations" are a part of the larger group of activities that make up "maritime employment." See Webster's New Collegiate Dictionary 581 (1973). 8 In fact, the language of the situs requirement lends independent support to the conclusion that Congress focused on occupation rather than location. The covered situs includes specific areas adjoining navigable water or any "other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel." § 3(a), 33 U.S.C. § 903(a). See also § 2(4), 33 U.S.C. § 902(4). 9 The legislative history of § 2(3) is not extensive. Committee Reports to both the House and the Senate contain identical language about the types of employees covered by the 1972 Act. See S.Rep. No. 92-1125, p. 13 (1972); H.R.Rep. No. 92-1441, pp. 10-11 (1972), U.S.Code Cong. & Admin.News 1972, p. 4698. The Senate Report also states that the 1972 Act "expands the coverage of this Act to cover injuries occurring in the contiguous dock area related to longshore and ship repair work." S.Rep. No. 92-1125, supra, at 2. Debate on the 1972 Act contributed little more than restatements of the Committee Reports and the statutory language. See, e. g., 118 Cong.Rec. 36270-36271 (1972) (remarks of Sen. Williams); id., at 36381-36382 (remarks of Rep. Daniels). 10 S.Rep. No. 92-1125, supra, at 13; H.R.Rep. No. 92-1441, supra, at 11, U.S.Code Cong. & Admin.News 1972, p. 4708. 11 Petitioners also cite two decisions for the proposition that pre-1972 case law defines maritime employment to include only work on the navigable waters. See Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334, 339-340, 73 S.Ct. 302, 305, 97 L.Ed. 367 (1953); Nogueira v. New York, N. H. & H. R. Co., 281 U.S. 128, 133, 50 S.Ct. 303, 304, 74 L.Ed. 754 (1930). Neither decision discusses what types of land-based loading or unloading operations might constitute maritime employment, probably because the situs requirement in the pre-1972 Act barred recovery for all injuries sustained on land. See Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969). In any event, the interpretation of the pre-1972 Act cannot obstruct Congress' obvious intent to include some land-based workers within the coverage of the current Act. 12 Hearings on S. 2318 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 176 (1972) (testimony of Ralph Hartman, Bethlehem Steel Corp.). The same witness was asked if his company would favor extending federal benefits to all ship repairmen instead of continuing the pre-1972 practice of limiting federal compensation to ship repairmen who worked over the water. He stated that "we would interpose no objection . . . to extending the Longshoremen's Act to the land-based facility of the ship repair yard." Id., at 177. 13 P. Hartman, Collective Bargaining and Productivity 43-45 (1969); M. Norris, The Law of Maritime Personal Injuries § 3, p. 7 (3d ed. 1975); see U. S. Dept. of Labor, Manpower Utilization-Job Security in the Longshore Industry (Boston) 40-41 (1964); id. (Baltimore), at 32; id. (Houston-Galveston), at 45-46, 65-69; id.(Jacksonville-Charleston), at 38-40, 57-59; id. (Mobile), at 36-37; id. (New Orleans), at 35-36; id. (New York), at 21-24; id. (Philadelphia), at 37-38. A Committee of the House of Representatives found in 1922 that longshoremen may be "unloading a dray or a railroad car or moving articles from one point on the dock to another" as well as actually moving cargo on or off ship. H.R.Rep. No. 639, 67th Cong., 2d Sess., 2 (1922). 14 See n. 7, supra. 15 Supra, at 72. 16 Supra, at 71. 17 As noted above, see supra, at 71-72, longshoremen in the Ports of Beaumont and Galveston handle all cargo that moves directly between ship and land transportation. That arrangement appears to reflect a general industry rule. See Hartman, supra n. 13, at 60; U. S. Dept. of Labor, Manpower Utilization-Job Security in the Longshore Industry (Baltimore) 31 (1964); id. (New Orleans), at 35; id. (Jacksonville), at 40. 18 Congress was especially concerned that some workers might walk in and walk out of coverage. Our observation that Ford and Bryant were engaged in maritime employment at the time of their injuries does not undermine the holding of Northeast Marine Terminal Co. v. Caputo, 432 U.S., at 273-274, 97 S.Ct., at 2362-2363, that a worker is covered if he spends some of his time in indisputably longshoring operations and if, without the 1972 Act, he would be only partially covered.

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444 U.S. 111 100 S.Ct. 352 62 L.Ed.2d 259 UNITED STATES, Petitioner,v.William A. KUBRICK. No. 78-1014. Argued Oct. 3, 1979. Decided Nov. 28, 1979. Syllabus A provision of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b), bars any tort claim against the United States unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." In 1968, several weeks after having an infected leg treated with neomycin (an antibiotic) at a Veterans' Administration (VA) hospital, respondent suffered a hearing loss, and in January 1969 was informed by a private physician that it was highly possible that the hearing loss was the result of the neomycin treatment. Subsequently, in the course of respondent's unsuccessful administrative appeal from the VA's denial of his claim for certain veterans' benefits based on the allegation that the neomycin treatment had caused his deafness, another private physician in June 1971 told respondent that the neomycin had caused his injury and should not have been administered. In 1972, respondent filed suit under the FTCA, alleging that he had been injured by negligent treatment at the VA hospital. The District Court rendered judgment for respondent, rejecting the Government's defense that respondent's claim was barred by the 2-year statute of limitations because it had accrued in January 1969, when respondent first learned that his hearing loss had probably resulted from the neomycin, and holding that respondent had no reason to suspect negligence until his conversation with the second physician in June 1971, less than two years before the action was commenced. The Court of Appeals affirmed, holding that if a medical malpractice claim does not accrue until a plaintiff is aware of his injury and its cause, neither should it accrue until he knows or should suspect that the doctor who caused the injury was legally blameworthy, and that here the limitations period was not triggered until the second physician indicated in June 1971 that the neomycin treatment had been improper. Held: A claim accrues within the meaning of § 2401(b) when the plaintiff knows both the existence and the cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice. Hence, respondent's claim accrued in January 1969 when he was aware of his injury and its probable cause, and thus was barred by the 2-year statute of limitations. Pp. 117-125. (a) Section 2401(b) is the balance struck by Congress in the context of tort claims against the Government, and should not be construed so as to defeat its purpose of encouraging the prompt presentation of claims. Moreover, § 2401(b), being a condition of the FTCA's waiver of the United States' immunity from suit, should not be construed to extend such waiver beyond that which Congress intended. Pp. 117-118. (b) There is nothing in the FTCA's language or legislative history that provides a substantial basis for the Court of Appeals' construction of § 2401(b). Nor did the prevailing case law at the time the FTCA was passed lend support to the notion that tort claims in general or malpractice claims in particular do not accrue until a plaintiff learns that his injury was negligently inflicted. Pp. 119-120. (c) For statute of limitations purposes, a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should not receive equal treatment. P. 122. (d) A plaintiff such as respondent, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community, and to excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute. Whether or not he is competently advised, or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort plaintiffs must make. Pp. 123-124. 581 F.2d 1092, reversed. Elinor H. Stillman, Washington, D. C., for petitioner. Benjamin Kuby, Philadelphia, Pa., for respondent. Mr. Justice WHITE delivered the opinion of the Court. 1 Under the Federal Tort Claims Act (Act),1 28 U.S.C. § 2401(b), a tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." The issue in this case is whether the claim "accrues" within the meaning of the Act when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice. 2 * Respondent Kubrick, a veteran, was admitted to the Veterans' Administration (VA) hospital in Wilkes-Barre, Pa., in April 1968, for treatment of an infection of the right femur. Following surgery, the infected area was irrigated with neomycin, an antibiotic, until the infection cleared. Approximately six weeks after discharge, Kubrick noticed a ringing sensation in his ears and some loss of hearing. An ear specialist in Scranton, Pa., Dr. Soma, diagnosed the condition as bilateral nerve deafness. His diagnosis was confirmed by other specialists. One of them, Dr. Sataloff, secured Kubrick's VA hospital records and in January 1969, informed Kubrick that it was highly possible that the hearing loss was the result of the neomycin treatment administered at the hospital. Kubrick, who was already receiving disability benefits for a service-connected back injury, filed an application for an increase in benefits pursuant to 38 U.S.C. § 351,2 alleging that the neomycin treatment had caused his deafness. The VA denied the claim in September 1969, and on resubmission again denied the claim, on the grounds that no causal relationship existed between the neomycin treatment and the hearing loss and that there was no evidence of "carelessness, accident, negligence, lack of proper skill, error in judgment or other fault on the part of the Government." 3 In the course of pursuing his administrative appeal, Kubrick was informed by the VA that Dr. Soma had suggested a connection between Kubrick's loss of hearing and his prior occupation as a machinist. When questioned by Kubrick on June 2, 1971, Dr. Soma not only denied making the statement attributed to him but also told respondent that the neomycin had caused his injury and should not have been administered. On Dr. Sataloff's advice, respondent then consulted an attorney and employed him to help with his appeal. In rendering its decision in August 1972, the VA Board of Appeals recognized that Kubrick's hearing loss "may have been caused by the neomycin irrigation" but rejected the appeal on the ground that the treatment was in accordance with acceptable medical practices and procedures and that the Government was therefore faultless.3 4 Kubrick then filed suit under the Act, alleging that he had been injured by negligent treatment in the VA hospital.4 After trial, the District Court rendered judgment for Kubrick, rejecting, among other defenses, the assertion by the United States that Kubrick's claim was barred by the 2-year statute of limitations because the claim had accrued in January 1969, when he learned from Dr. Sataloff that his hearing loss had probably resulted from the neomycin. The District Court conceded that the lower federal courts had held with considerable uniformity that a claim accrues within the meaning of the Act when "the claimant has discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice," 435 F.Supp. 166, 180 (ED Pa.1977), and that notice of the injury and its cause normally were sufficient to trigger the limitations period. iId., at 184. As the District Court read the authorities, however, a plaintiff could avoid the usual rule by showing that he had exercised reasonable diligence and had no "reasonable suspicion" that there was negligence in his treatment. Id., at 185. "[W]e do not believe it reasonable to start the statute running until the plaintiff had reason at least to suspect that a legal duty to him had been breached." Ibid. Here, the District Court found, Kubrick had no reason to suspect negligence until his conversation with Dr. Soma in June 1971, less than two years prior to presentation of his tort claim. 5 The District Court went on to hold, based on the expert testimony before it, that a reasonably competent orthopedic surgeon in the Wilkes-Barre community, which the VA doctor held himself out to be, should have known that irrigating Kubrick's wound with neomycin would cause deafness. It was therefore negligent to use that drug in that manner. Damages were determined and awarded. 6 Except for remanding to resolve a setoff claimed by the United States,5 the Court of Appeals for the Third Circuit affirmed. 581 F.2d 1092 (1978). It ruled that even though a plaintiff is aware of his injury and of the defendant's responsibility for it, the statute of limitations does not run where the plaintiff shows that "in the exercise of due diligence he did not know, nor should he have known, facts which would have alerted a reasonable person to the possibility that the treatment was improper." Id., at 1097. We granted certiorari to resolve this important question of the administration of the statute, 440 U.S. 906, 99 S.Ct. 1211, 59 L.Ed.2d 453 (1979), and we now reverse. II 7 Statutes of limitations, which "are found and approved in all systems of enlightened jurisprudence," Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879), represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that "the right to be free of stale claims in time comes to prevail over the right to prosecute them." Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L .Ed. 788 (1944). These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise. United States v. Marion, 404 U.S. 307, 322, n. 14, 92 S.Ct. 455, 464, n. 14, 30 L.Ed.2d 468 (1971); Burnett v. New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945); Missouri K. & T. R. Co. v. Harriman, 227 U.S. 657, 672, 33 S.Ct. 397, 401, 57 L.Ed. 690 (1913); Bell v. Morrison, 1 Pet. 351, 360, 7 L.Ed. 174 (1828). 8 Section 2401(b), the limitations provision involved here, is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims. Campbell v. Haverhill, 155 U.S. 610, 617, 39 L.Ed. 280 (1895); Bell v. Morrison, supra, at 360. We should regard the plea of limitations as a "meritorious defense, in itself serving a public interest." Guaranty Trust Co. v. United States, 304 U.S. 126, 136, 58 S.Ct. 785, 790, 82 L.Ed. 1224 (1938). 9 We should also have in mind that the Act waives the immunity of the United States and that in construing the statute of limitations, which is a condition of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended. See Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957); cf. Indian Towing Co. v. United States, 350 U.S. 61, 68-69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955). Neither, however, should we assume the authority to narrow the waiver that Congress intended. Indian Towing Co. v. United States, supra. 10 It is in the light of these considerations that we review the judgment of the Court of Appeals. III 11 It is undisputed in this case that in January 1969 Kubrick was aware of his injury and its probable cause. Despite this factual predicate for a claim against the VA at that time, the Court of Appeals held that Kubrick's claim had not yet accrued and did not accrue until he knew or could reasonably be expected to know that in the eyes of the law, the neomycin treatment constituted medical malpractice. The Court of Appeals thought that in "most" cases knowledge of the causal connection between treatment and injury, without more, will or should alert a reasonable person that there has been an actionable wrong. 581 F.2d, at 1096. But it is apparent, particularly in light of the facts in this record, that the Court of Appeals' rule would reach any case where an untutored plaintiff, without benefit of medical or legal advice and because of the "technical complexity" of the case, id., at 1097, would not himself suspect that his doctors had negligently treated him. As we understand the Court of Appeals, the plaintiff in such cases need not initiate a prompt inquiry and would be free to sue at any time within two years from the time he receives or perhaps forms for himself a reasonable opinion that he has been wronged. In this case, for example, Kubrick would have been free to sue if Dr. Soma had not told him until 1975, or even 1980, instead of 1971, that the neomycin treatment had been a negligent act. 12 There is nothing in the language or the legislative history of the Act that provides a substantial basis for the Court of Appeals' construction of the accrual language of § 2401(b).6 Nor did the prevailing case law at the time the Act was passed lend support for the notion that tort claims in general or malpractice claims in particular do not accrue until a plaintiff learns that his injury was negligently inflicted. Indeed, the Court of Appeals recognized that the general rule under the Act has been that a tort claim accrues at the time of the plaintiff's injury, although it thought that in medical malpractice cases the rule had come to be that the 2-year period did not begin to run until the plaintiff has discovered both his injury and its cause.7 But even so—and the United States was prepared to concede as much for present purposes—the latter rule would not save Kubrick's action since he was aware of these essential facts in January 1969. Reasoning, however, that if a claim does not accrue until a plaintiff is aware of his injury and its cause, neither should it accrue until he knows or should suspect that the doctor who caused his injury was legally blameworthy, the Court of Appeals went on to hold that the limitations period was not triggered until Dr. Soma indicated in June 1971 that the neomycin irrigation treatment had been improper.8 13 We disagree. We are unconvinced that for statute of limitations purposes a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask. If he does ask and if the defendant has failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff. 14 In this case, the trial court found, and the United States did not appeal its finding, that the treating physician at the VA hospital had failed to observe the standard of care governing doctors of his specialty in Wilkes-Barre, Pa., and that reasonably competent doctors in this branch of medicine would have known that Kubrick should not have been treated with neomycin.9 Crediting this finding, as we must, Kubrick need only have made inquiry among doctors with average training and experience in such matters to have discovered that he probably had a good cause of action. The difficulty is that it does not appear that Kubrick ever made any inquiry, although meanwhile he had consulted several specialists about his loss of hearing and had been in possession of all the facts about the cause of his injury since January 1969. Furthermore, there is no reason to doubt that Dr. Soma, who in 1971 volunteered his opinion that Kubrick's treatment had been improper, would have had the same opinion had the plaintiff sought his judgment in 1969. 15 We thus cannot hold that Congress intended that "accrual" of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.10 If there exists in the community a generally applicable standard of care with respect to the treatment of his ailment, we see no reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard. If advised that he has been wronged, he may promptly bring suit. If competently advised to the contrary, he may be dissuaded, as he should be, from pressing a baseless claim. Of course, he may be incompetently advised or the medical community may be divided on the crucial issue of negligence, as the experts proved to be on the trial of this case. But however or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiff's discovery of the relevant facts about injury. 16 The District Court, 435 F.Supp., at 185, and apparently the Court of Appeals, thought its ruling justified because of the "technical complexity," 581 F.2d, at 1097, of the negligence question in this case. But determining negligence or not is often complicated and hotly disputed, so much so that judge or jury must decide the issue after listening to a barrage of conflicting expert testimony. And if in this complicated malpractice case, the statute is not to run until the plaintiff is led to suspect negligence, it would be difficult indeed not to apply the same accrual rule to medical and health claims arising under other statutes and to a whole range of other negligence cases arising under the Act and other federal statutes, where the legal implications or complicated facts make it unreasonable to expect the injured plaintiff, who does not seek legal or other appropriate advice, to realize that his legal rights may have been invaded. 17 We also have difficulty ascertaining the precise standard proposed by the District Court and the Court of Appeals. On the one hand, the Court of Appeals seemed to hold that a Tort Claims Act malpractice claim would not accrue until the plaintiff knew or could reasonably be expected to know of the Government's breach of duty. Ibid. On the other hand, it seemed to hold that the claim would accrue only when the plaintiff had reason to suspect or was aware of facts that would have alerted a reasonable person to the possibility that a legal duty to him had been breached. Ibid. In any event, either of these standards would go far to eliminate the statute of limitations as a defense separate from the denial of breach of duty. IV 18 It goes without saying that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims. But that is their very purpose, and they remain as ubiquitous as the statutory rights or other rights to which they are attached or are applicable. We should give them effect in accordance with what we can ascertain the legislative intent to have been. We doubt that here we have misconceived the intent of Congress when § 2401(b) was first adopted or when it was amended to extend the limitations period to two years. But if we have, or even if we have not but Congress desires a different result, it may exercise its prerogative to amend the statute so as to effect its legislative will. The judgment of the Court of Appeals is 19 Reversed. 20 Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 21 Normally a tort claim accrues at the time of the plaintiff's injury. In most cases that event provides adequate notice to the plaintiff of the possibility that his legal rights have been invaded. It is well settled, however, that the normal rule does not apply to medical malpractice claims under the Federal Tort Claims Act. The reason for this exception is essentially the same as the reason for the general rule itself. The victim of medical malpractice frequently has no reason to believe that his legal rights have been invaded simply because some misfortune has followed medical treatment. Sometimes he may not even be aware of the actual injury until years have passed; at other times, he may recognize the harm but not know its cause; or, as in this case, he may have knowledge of the injury and its cause, but have no reason to suspect that a physician has been guilty of any malpractice. In such cases—until today—the rule that has been applied in the federal courts is that the statute of limitations does not begin to run until after fair notice of the invasion of the plaintiff's legal rights. 22 Essentially, there are two possible approaches to construction of the word "accrues" in statutes of limitations: (1) a claim might be deemed to "accrue" at the moment of injury without regard to the potentially harsh consequence of barring a meritorious claim before the plaintiff has a reasonable chance to assert his legal rights, or (2) it might "accrue" when a diligent plaintiff has knowledge of facts sufficient to put him on notice of an invasion of his legal rights. The benefits that flow from certainty in the administration of our affairs favor the former approach in most commercial situations.1 But in medical malpractice cases the harsh consequences of that approach have generally been considered unacceptable.2 In all events, this Court adopted the latter approach over 30 years ago when it endorsed the principle that "blameless ignorance" should not cause the loss of a valid claim for medical injuries. Writing for the Court, Mr. Justice Rutledge expressed the point simply: 23 "We do not think the humane legislative plan [Federal Employers' Liability Act] intended such consequences to attach to blameless ignorance. Nor do we think those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights." Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025. 24 This rule has been consistently applied by the Courts of Appeals in the intervening decades without any suggestion of complaint from Congress. 25 In my judgment, a fair application of this rule forecloses the Court's attempt to distinguish between a plaintiff's knowledge of the cause of his injury on the one hand and his knowledge of the doctor's failure to meet acceptable medical standards on the other. For in both situations the typical plaintiff will, and normally should, rely on his doctor's explanation of the situation.3 26 The Urie rule would not, of course, prevent the statute from commencing to run if the plaintiff's knowledge of an injury, or its cause, would place a reasonably diligent person on notice that a doctor had been guilty of misconduct. But if he neither suspects, nor has any reason to suspect, malpractice, I see no reason to treat his claim differently than if he were not aware of the cause of the harm or, indeed, of the harm itself. In this case the District Court expressly found that "plaintiff's belief that there was no malpractice was reasonable in view of the technical complexity of the question whether his neomycin treatment involved excessive risks, the failure of any of his doctors to suggest prior to June 1971 the possibility of negligence, and the repeated unequivocal assertions by the Veterans Administration that there was no negligence on the part of the government." 435 F.Supp. 166, 174. 27 The Court is certainly correct in stating that one purpose of the statute of limitations is to require the "reasonably diligent presentation of tort claims against the Government." Ante, at 123. A plaintiff who remains ignorant through lack of diligence cannot be characterized as "blameless." But unless the Court is prepared to reverse the Court of Appeals' judgment that the District Court's findings were adequately supported by the evidence, the principle of requiring diligence does not justify the result the Court reaches today. The District Court found that "plaintiff exercised all kinds of reasonable diligence in attempting to establish a medical basis for increased disability benefits." 435 F.Supp., at 185. That diligence produced not only the Government's denials, but, worse, what may have been a fabrication. It was only after the Government told plaintiff that Dr. Soma had suggested that plaintiff's occupation as a machinist had caused his deafness that plaintiff, by confronting Dr. Soma, first became aware that neomycin irrigation may not have been an acceptable medical practice. Plaintiff was unquestionably diligent; moreover, his diligence ultimately bore fruit. There is no basis for assuming, as this Court holds, that plaintiff could have been more diligent and discovered his cause of action sooner. 28 The issue of diligence in a negligence case should be resolved by the factfinder—not by the Supreme Court of the United States—and its resolution should depend on the evidence in the record, rather than on speculation about what might constitute diligence in various other circumstances.4 Since a large number of circuit judges have reached the same conclusion, and since I find nothing in the Court's opinion that lessens my respect for their collective wisdom, I would simply affirm the unanimous holding of the Court of Appeals for the Third Circuit affirming the judgment of the District Court which merely applied well-settled law to the somewhat unusual facts of this case.5 1 Title 28 U.S.C. § 2674 provides in part: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." Title 28 U.S.C. § 1346(b) provides that the district courts "shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Title 28 U.S.C. § 2401(b), the limitations provision applicable to tort claims against the United States, provides: "A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." 2 Title 38 U.S.C. § 351 provides that a veteran who suffers "an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment" administered by the VA shall be awarded disability benefits "in the same manner as if such disability . . . were service-connected." The regulations require the applicant for benefits to show that "the disability proximately resulted through carelessness, accident, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of the Veterans Administration." 38 CFR § 3.358(c)(3) (1978). 3 In 1975, upon reconsideration of its decision, the VA Board of Appeals not only found, as it had before, that Kubrick's hearing loss may have been caused by neomycin irrigation but also concluded that there was fault on the part of the VA in administering that drug by irrigation. In the present litigation, the Government contested the allegation of malpractice despite the administrative finding of fault. 4 Title 28 U.S.C. § 2675(a) in pertinent part provides: "An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal Agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." Kubrick did not file an administrative claim until after he filed his action in the District Court. This possible objection to his suit the District Court found moot when the VA denied the administrative claim on April 13, 1973. The United States did not pursue the issue on appeal. 5 The VA Board of Appeals' reconsideration of Kubrick's case in 1975 entitled him to an increase in his disability rating as a result of the use of neomycin. By the time of the Court of Appeals' decision, respondent had received over $50,000 in augmented disability benefits. Under 38 U.S.C. § 351, the benefits payments must be set off against the damages awarded in tort; and the increment in future monthly benefits is not paid until the aggregate amount of the benefits withheld equals the damages awarded. 6 Respondent concedes as much with respect to the legislative history. The Act was enacted as part of the Legislative Reorganization Act of 1946. 60 Stat. 842. The Senate Report on the bill, S.Rep.No.1400, 79th Cong., 2d Sess., 33 (1946), merely states that the limitations period is one year but does not mention when a claim accrues. In 1949, the limitations period was extended to two years, Ch. 92, 63 Stat. 62, but the issue of accrual was not further addressed. H.R.Rep.No.276, 81st Cong., 1st Sess., 1 (1949), U.S.Code Cong.Service 1949, p. 1226, notes that the limitations period would enlarge the period for filing to two years from "the date of accrual" but does not explain how to determine the date of accrual. Indeed, to the extent that the Report touches the issue at all, the Report seems almost to indicate that the time of accrual is the time of injury. Thus, the Report states as the reason for the amendment, in addition to bringing the Act more in line with limitations periods for state tort actions and other federal statutes: "The 1-year existing period is unfair to some claimants who suffered injuries which did not fully develop until after the expiration of the period for making claim. Moreover, the wide area of operations of the Federal agencies, particularly the armed-service agencies, would increase the possibility that notice of the wrongful death of a deceased to his next of kin would be so long delayed in going through channels of communication that the notice would arrive at a time when the running of the statute had already barred the institution of a claim or suit." Id., at 3-4. The Act was further amended in 1966, 80 Stat. 307, to require that every claim under the Act be presented in writing to the appropriate agency as a prerequisite to suit. The Act originally required presentation to the agency only if the claim was for $1,000 or less, 60 Stat. 845. An amendment in 1959 raised the amount to $2,500, Pub.L.86-238, 73 Stat. 472. Prior to 1966, the limitations period was keyed to the filing of suit; the 1966 amendment made the time of filing the administrative claim the critical date for limitations purposes. But although the Reports indicate these changes with precision, they do not further explicate when a tort claim "accrues" within the meaning of 28 U.S.C. § 2401(b). S.Rep.No.1327, 89th Cong., 2d Sess., 1, 5 (1966); H.R.Rep.No.1532, 89th Cong., 2d Sess., 3, 8 (1966), U.S.Code Cong. & Admin.News 1966, p. 2515. 7 In Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), the Court held that a claim under the Federal Employers' Liability Act did not accrue until the plaintiff's injury manifested itself. In that case, plaintiff Urie contracted silicosis from his work as a fireman on a steam locomotive. His condition was diagnosed only in the weeks after he became too ill to work. The Court was reluctant to charge Urie with the "unknown and inherently unknowable" and held that because of his "blameless ignorance" of the fact of his injury, his claim did not accrue under the Federal Employers' Liability Act until his disease manifested itself. 337 U.S., at 169-170, 69 S.Ct., at 1024-1025. Quinton v. United States, 304 F.2d 234 (CA5 1962), applied the Urie approach to medical malpractice claims under the Federal Tort Claims Act. Other Circuits have followed suit. Hungerford v. United States, 307 F.2d 99 (CA9 1962); Toal v. United States, 438 F.2d 222 (CA2 1971); Tyminski v. United States, 481 F.2d 257 (CA3 1973); Portis v. United States, 483 F.2d 670 (CA4 1973); Reilly v. United States, 513 F.2d 147 (CA8 1975); Casias v. United States, 532 F.2d 1339 (CA10 1976). Restatement (Second) of Torts § 899, Comment, e, pp. 444-445 (1979), reflects these developments: "One group of cases in which there has been extensive departure from the earlier rule that the statute of limitations runs although the plaintiff has no knowledge of the injury has involved actions for medical malpractice. Two reasons can be suggested as to why there has been a change in the rule in many jurisdictions in this area. One is the fact that in most instances the statutory period within which the action must be initiated is short—one year, or at most two, being the common time limit. This is for the purpose of protecting physicians against unjustified claims; but since many of the consequences of medical malpractice often do not become known or apparent for a period longer than that of the statute, the injured plaintiff is left without a remedy. The second reason is that the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely upon what he is told by the physician or surgeon. "There are still courts that proceed to apply the rule that the action is barred by the statute even though there has been no knowledge that it could be brought. . . . "In a wave of recent decisions these various devices have been replaced by decisions meeting the issue directly and holding that the statute must be construed as not intended to start to run until the plaintiff has in fact discovered the fact that he has suffered injury or by the exercise of reasonable diligence should have discovered it. There have also been a number of instances in which a similar rule has been applied to other professional malpractice, such as that of attorneys or accountants and the rule may thus become a general one." 8 The Court of Appeals relied on three federal cases, all decided within the past five years, that held or indicated in dictum that a malpractice plaintiff under the federal Act must know the legal implications of the facts, as well as the facts themselves, before the limitations period will begin to run. Exnicious v. United States, 563 F.2d 418, 420, 424 (CA10 1977); Bridgford v. United States, 550 F.2d 978, 981-982 (CA4 1977); Jordan v. United States, 503 F.2d 620 (CA6 1974). Since the holding below, another Circuit has endorsed these views. De Witt v. United States, 593 F.2d 276 (CA7 1979). The dissent, like the respondent, relies on Urie and Quinton, but neither case controls this one. Both dealt with the discovery of the factual predicate for a malpractice claim, but neither addressed the question of plaintiff's awareness of negligence on defendant's part. Contrary to the implications of the dissent, the prevailing rule under the Act has not been to postpone the running of the limitations period in malpractice cases until the plaintiff is aware that he has been legally wronged. Holdings such as the one before us now are departures from the general rule and, as indicated above, are of quite recent vintage. 9 The trial court found: "We credit the testimony of plaintiff's experts that the medical literature as of April 1968 contained sufficient and sufficiently widespread information as to the ototoxicity and absorption properties of neomycin to have warned [the treating physician] of the dangerousness and hence the impropriety of his treatment." 435 F.Supp. 166, 177 (E.D.Pa.1977) (footnote omitted). It further concluded: "Those findings tell us that [the physician's] lack of knowledge, and his concomitant treatment, violated the national standard for specialists because of the generalized knowledge in the national community of orthopedic specialists of the hazards of neomycin and of its potentiality for absorption in circumstances such as those created by [the physician's] use of neomycin in 1% irrigating solution through a closed hemovac system (at least in such high and lengthy dosage). However, even if a similar locality standard were to be applied, our findings of fact support the conclusion that the information in question was available to or known by the average specialist in Wilkes-Barre to the same or similar extent as the average specialist in Philadelphia. . . . "Finally, we conclude that what was involved was not mere error in judgment but a lack of skill or knowledge as measured, of course, by the level of medical knowledge in April, 1968." Id., at 188-189. 10 As the dissent suggests, post, at 128, we are thus in partial disagreement with the conclusion of the lower courts that Kubrick exercised all reasonable diligence. Although he diligently ascertained the cause of his injury, he sought no advice within two years thereafter as to whether he had been legally wronged. The dissent would excuse the omission. For statute of limitations purposes, we would not. 1 See Gates Rubber Co. v. USM Corp., 508 F.2d 603, 611 (CA7 1975). 2 One should note not only the cases cited by the Court in its footnote 7, ante, at 120, but also the reference to "a wave of recent decisions" in the quotation from the Restatement (Second) of Torts in that footnote. 3 In its discussion of the reasons why most jurisdictions have adopted a special rule for medical malpractice cases, the Restatement (Second) of Torts notes "that the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely upon what he is told by the physician or surgeon." Restatement (Second) of Torts § 899, Comment e, p. 444 (1979). 4 The factual predicate for the Court's speculation is its assumption that if a patient who has been mistreated by one doctor should ask another if the first "failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff." Ante, at 122. I am not at all sure about those odds. See W. Prosser, Law of Torts 164 (4th ed. 1971); Markus, Conspiracy of Silence, 14 Clev.-Mar.L.Rev. 520 (1965); Seidelson, Medical Malpractice Cases and the Reluctant Expert, 16 Cath.U.L.Rev. 158 (1966). But whatever the odds are generally, I would prefer to have the issue of the diligence in exploring the reason for the unfortunate condition of this deaf plaintiff decided on the basis of evidence relevant to his particular injury. 5 Not only do I dissent from the Court's result, but I also believe the decision to grant certiorari was ill-advised. The Court notes, ante, at 125, that Congress may change the rule announced today. I would add that Congress possesses certain options we do not have, such as creating a bifurcated statute, to temper the interest in repose when it threatens to cause an unfair result. See Gates Rubber Co. v. USM Corp., 508 F.2d, at 611-612. But Congress possessed the same options before this decision as well as after it. There was nothing to prevent the Executive from notifying Congress that the omission of any statutory definition of the word "accrues" has created problems that need legislative attention. Reversal of a just judgment is an unnecessarily high price to pay in order to provide Congress with that notice.

78

444 U.S. 85 100 S.Ct. 338 62 L.Ed.2d 238 Ventura E. YBARRA, Appellant,v.State of ILLINOIS. No. 78-5937. Argued Oct. 9, 1979. Decided Nov. 28, 1979. Rehearing Denied Jan. 21, 1980. See 444 U.S. 1049, 100 S.Ct. 741. Syllabus On the strength of a complaint for a search warrant based on an informant's statements that he had observed tinfoil packets on the person of a bartender and behind the bar at a certain tavern and that he had been advised by the bartender that the latter would have heroin for sale on a certain date, a judge of an Illinois state court issued a warrant authorizing the search of the tavern and the person of the bartender for "evidence of the offense of possession of a controlled substance." Upon entering the tavern to execute the warrant, police officers announced their purpose and advised those present that they were going to conduct a "cursory search for weapons." The officer who searched the customers felt what he described as "a cigarette pack with objects in it" in his first patdown of appellant, one of the customers. The officer did not then remove this pack from appellant's pocket but, after patting down other customers, returned to appellant, frisked him again, retrieved the cigarette pack from his pants pocket, and found inside it six tinfoil packets containing heroin. After appellant was indicted for unlawful possession of a controlled substance, he filed a pretrial motion to suppress the contraband seized from his person at the tavern. The trial court denied the motion, finding that the search had been conducted under the authority of an Illinois statute which empowers law enforcement officers executing a search warrant to detain and search any person found on the premises in order to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant. Appellant was convicted, and the Illinois Appellate Court affirmed, holding that the Illinois statute was not unconstitutional in its application to the facts of this case. Held : The searches of appellant and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments. Pp. 96-96. (a) When the search warrant was issued the authorities had no probable cause to believe that any person found in the tavern, aside from the bartender, would be violating the law. The complaint for the warrant did not allege that the tavern was frequented by persons illegally purchasing drugs or that the informant had ever seen a patron of the tavern purchase drugs from the bartender or any other person. And probable cause to search appellant was still absent when the police executed the warrant; upon entering the tavern, the police did not recognize appellant and had no reason to believe that he had committed, was committing, or was about to commit any offense. The police did possess a warrant based on probable cause to search the tavern where appellant happened to be when the warrant was executed, but a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917. Although the warrant gave the officers authority to search the premises and the bartender, it gave them no authority to invade the constitutional protections possessed individually by the tavern's customers. Pp. 90-92. (b) Nor was the action of the police constitutionally permissible on the theory that the first search of appellant constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 and yielded probable cause to believe that appellant was carrying narcotics, thus justifying the second search for which no warrant was required in light of the exigencies of the situation coupled with the ease with which appellant could have disposed of the illegal substance. A reasonable belief that a person is armed and presently dangerous must form the predicate to a patdown of the person for weapons. Here, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that appellant was armed and dangerous. Pp. 92-93. (c) The Fourth and Fourteenth Amendments will not be construed to permit evidence searches of persons who, at the commencement of the search, are on "compact" premises subject to a search warrant, even where the police have a "reasonable belief" that such persons "are connected with" drug trafficking and "may be concealing or carrying away the contraband." Cf. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210. Pp. 94-96. 58 Ill.App.3d 57, 15 Ill.Dec. 541, 373 N.E.2d 1013, reversed and remanded. Alan D. Goldberg, Elgin, Ill., for appellant, pro hac vice, by special leave of Court; Ralph Ruebner and Mary Robinson, Deputy State Appellate Defenders, Elgin, Ill., on the briefs. Melbourne A. Noel, Jr., Oak Park, Ill., for appellee. Mr. Justice STEWART delivered the opinion of the Court. 1 An Illinois statute authorizes law enforcement officers to detain and search any person found on premises being searched pursuant to a search warrant, to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant.1 The question before us is whether the application of this statute to the facts of the present case violated the Fourth and Fourteenth Amendments. 2 * On March 1, 1976, a special agent of the Illinois Bureau of Investigation presented a "Complaint for Search Warrant" to a judge of an Illinois Circuit Court. The complaint recited that the agent had spoken with an informant known to the police to be reliable and: 3 "3. The informant related . . . that over the weekend of 28 and 29 February he was in the [Aurora Tap Tavern, located in the city of Aurora, Ill.] and observed fifteen to twenty-five tin-foil packets on the person of the bartender 'Greg' and behind the bar. He also has been in the tavern on at least ten other occasions and has observed tin-foil packets on 'Greg' and in a drawer behind the bar. The informant has used heroin in the past and knows that tin-foil packets are a common method of packaging heroin. 4 "4. The informant advised . . . that over the weekend of 28 and 29 February he had a conversation with 'Greg' and was advised that 'Greg' would have heroin for sale on Monday, March 1, 1976. This conversation took place in the tavern described." 5 On the strength of this complaint, the judge issued a warrant authorizing the search of "the following person or place: . . . [T]he Aurora Tap Tavern. . . . Also the person of 'Greg', the bartender, a male white with blondish hair appx. 25 years." The warrant authorized the police to search for "evidence of the offense of possession of a controlled substance," to wit, "[h]eroin, contraband, other controlled substances, money, instrumentalities and narcotics, paraphernalia used in the manufacture, processing and distribution of controlled substances." 6 In the late afternoon of that day, seven or eight officers proceeded to the tavern. Upon entering it, the officers announced their purpose and advised all those present that they were going to conduct a "cursory search for weapons." One of the officers then proceeded to patdown each of the 9 to 13 customers present in the tavern, while the remaining officers engaged in an extensive search of the premises. 7 The police officer who frisked the patrons found the appellant, Ventura Ybarra, in front of the bar standing by a pinball machine. In his first patdown of Ybarra, the officer felt what he described as "a cigarette pack with objects in it." He did not remove this pack from Ybarra's pocket. Instead, he moved on and proceeded to patdown other customers. After completing this process the officer returned to Ybarra and frisked him once again. This second search of Ybarra took place approximately 2 to 10 minutes after the first. The officer relocated and retrieved the cigarette pack from Ybarra's pants pocket. Inside the pack he found six tinfoil packets containing a brown powdery substance which later turned out to be heroin. 8 Ybarra was subsequently indicted by an Illinois grand jury for the unlawful possession of a controlled substance. He filed a pretrial motion to suppress all the contraband that had been seized from his person at the Aurora Tap Tavern. At the hearing on this motion the State sought to justify the search by reference to the Illinois statute in question. The trial court denied the motion to suppress, finding that the search had been conducted under the authority of subsection (b) of the statute, to "prevent the disposal or concealment of [the] things particularly described in the warrant." The case proceeded to trial before the court sitting without a jury, and Ybarra was found guilty of the possession of heroin. 9 On appeal, the Illinois Appellate Court held that the Illinois statute was not unconstitutional "in its application to the facts" of this case. 58 Ill.App.3d 57, 64, 15 Ill.Dec. 541, 545, 373 N.E.2d 1013, 1017. The court acknowledged that, had the warrant directed that a "large retail or commercial establishment" be searched, the statute could not constitutionally have been read to "authorize a 'blanket search' of persons or patrons found" therein. Id., at 62, 15 Ill.Dec., at 544, 373 N.E.2d at 1016. The court interpreted the statute as authorizing the search of persons found on premises described in a warrant only if there is "some showing of a connection with those premises, that the police officer reasonably suspected an attack, or that the person searched would destroy or conceal items described in the warrant." Id., at 61, 15 Ill.Dec. at 544, 373 N.E.2d, at 1016. Accordingly, the State Appellate Court found that the search of Ybarra had been constitutional because it had been "conducted in a one-room bar where it [was] obvious from the complaint . . . that heroin was being sold or dispensed," id., at 62, 15 Ill.Dec., at 544, 373 N.E.2d, at 1016, because "the six packets of heroin . . . could easily [have been] concealed by the defendant and thus thwart the purpose of the warrant," id., at 61, 15 Ill.Dec., at 544, 373 N.E.2d, at 1016, and because Ybarra was not an "innocent strange[r] having no connection with the premises," ibid, 15 Ill.Dec., at 544, 373 N.E.2d, at 1016. The court, therefore, affirmed Ybarra's conviction, and the Illinois Supreme Court denied his petition for leave to appeal. There followed an appeal to this Court, and we noted probable jurisdiction. 440 U.S. 970, 99 S.Ct. 1532, 59 L.Ed.2d 787. II 10 There is no reason to suppose that, when the search warrant was issued on March 1, 1976, the authorities had probable cause to believe that any person found on the premises of the Aurora Tap Tavern, aside from "Greg," would be violating the law.2 The search warrant complaint did not allege that the bar was frequented by persons illegally purchasing drugs. It did not state that the informant had ever seen a patron of the tavern purchase drugs from "Greg" or from any other person. Nowhere, in fact, did the complaint even mention the patrons of the Aurora Tap Tavern. 11 Not only was probable cause to search Ybarra absent at the time the warrant was issued, it was still absent when the police executed the warrant. Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale. 12 It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed.3 But, a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the "legitimate expectations of privacy" of persons, not places. See Rakas v. Illinois, 439 U.S. 128, 138-143, 148-149, 99 S.Ct. 421, 427-430, 433, 58 L.Ed.2d 387; Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576. 13 Each patron who walked into the Aurora Tap Tavern on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct from the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern or by "Greg." Although the search warrant, issued upon probable cause, gave the officers authority to search the premises and to search "Greg," it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern's customers.4 14 Notwithstanding the absence of probable cause to search Ybarra, the State argues that the action of the police in searching him and seizing what was found in his pocket was nonetheless constitutionally permissible. We are asked to find that the first patdown search of Ybarra constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. If this finding is made, it is then possible to conclude, the State argues, that the second search of Ybarra was constitutionally justified. The argument is that the patdown yielded probable cause to believe that Ybarra was carrying narcotics, and that this probable cause constitutionally supported the second search, no warrant being required in light of the exigencies of the situation coupled with the ease with which Ybarra could have disposed of the illegal substance. 15 We are unable to take even the first step required by this argument. The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons.5 Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612; Terry v. Ohio, supra, 392 U.S., at 21-24, 27, 88 S.Ct., at 1879-1881, 1883. When the police entered the Aurora Tap Tavern on March 1, 1976, the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. At the suppression hearing, the most Agent Johnson could point to was that Ybarra was wearing a 3/4-length lumber jacket, clothing which the State admits could be expected on almost any tavern patron in Illinois in early March. In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous. 16 The Terry case created an exception to the requirement of probable cause, an exception whose "narrow scope" this Court "has been careful to maintain."6 Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. See, e. g., Adams v. Williams, supra (at night, in high-crime district, lone police officer approached person believed by officer to possess gun and narcotics). Nothing in Terry can be understood to allow a generalized "cursory search for weapons" or indeed, any search whatever for anything but weapons. The "narrow scope" of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place. 17 What has been said largely disposes of the State's second and alternative argument in this case. Emphasizing the important governmental interest "in effectively controlling traffic in dangerous, hard drugs" and the ease with which the evidence of narcotics possession may be concealed or moved around from person to person, the State contends that the Terry "reasonable belief or suspicion" standard should be made applicable to aid the evidence-gathering function of the search warrant. More precisely, we are asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on "compact" premises subject to a search warrant, at least where the police have a "reasonable belief" that such persons "are connected with" drug trafficking and "may be concealing or carrying away the contraband." 18 Over 30 years ago, the Court rejected a similar argument in United States v. Di Re, 332 U.S. 581, 583-587, 68 S.Ct. 222, 223-225, 92 L.Ed. 210. In that case, a federal investigator had been told by an informant that a transaction in counterfeit gasoline ration coupons was going to occur at a particular place. The investigator went to that location at the appointed time and saw the car of one of the suspected parties to the illegal transaction. The investigator went over to the car and observed a man in the driver's seat, another man (Di Re) in the passenger's seat, and the informant in the back. The informant told the investigator that the person in the driver's seat had given him counterfeit coupons. Thereupon, all three men were arrested and searched. Among the arguments unsuccessfully advanced by the Government to support the constitutionality of the search of Di Re was the contention that the investigator could lawfully have searched the car, since he had reasonable cause to believe that it contained contraband, and correspondingly could have searched any occupant of the car because the contraband sought was of the sort "which could easily be concealed on the person."7 Not deciding whether or not under the Fourth Amendment the car could have been searched, the Court held that it was "not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled."8 19 The Di Re case does not, of course, completely control the case at hand. There the Government investigator was proceeding without a search warrant, and here the police possessed a warrant authorizing the search of the Aurora Tap Tavern. Moreover, in Di Re the Government conceded that its officers could not search all the persons in a house being searched pursuant to a search warrant.9 The State makes no such concession in this case. Yet the governing principle in both cases is basically the same, and we follow that principle today. The "long-prevailing" constitutional standard of probable cause embodies " 'the best compromise that has been found for accommodating [the] often opposing interests' in 'safeguard[ing] citizens from rash and unreasonable interferences with privacy' and in 'seek[ing] to give fair leeway for enforcing the law in the community's protection.' "10 20 For these reasons, we conclude that the searches of Ybarra and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments.11 Accordingly, the judgment is reversed, and the case is remanded to the Appellate Court of Illinois, Second District, for further proceedings not inconsistent with this opinion. 21 It is so ordered. 22 Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting. 23 I join Mr. Justice REHNQUIST's dissent since I cannot subscribe to the Court's unjustifiable narrowing of the rule of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court would require a particularized and individualized suspicion that a person is armed and dangerous as a condition to a Terry search. This goes beyond the rationale of Terry and overlooks the practicalities of a situation which no doubt often confronts officers executing a valid search warrant. The Court's holding is but another manifestation of the practical poverty of the judge-made exclusionary rule. "The suppression of truth is a grievous necessity at best, more especially when as here the inquiry concerns the public interest; it can be justified at all only when the opposed private interest is supreme." McMann v. SEC, 87 F.2d 377, 378 (CA2 1937) (L. Hand, J.). Here, the Court's holding operates as but a further hindrance on the already difficult effort to police the narcotics traffic which takes such a terrible toll on human beings. 24 These officers had validly obtained a warrant to search a named person and a rather small, one-room tavern for narcotics. Upon arrival, they found the room occupied by 12 persons. Were they to ignore these individuals and assume that all were unarmed and uninvolved? Given the setting and the reputation of those who trade in narcotics, it does not go too far to suggest that they might pay for such an easy assumption with their lives. The law does not require that those executing a search warrant must be so foolhardy. That is precisely what Mr. Chief Justice Warren's opinion in Terry stands for. Indeed, the Terry Court recognized that a balance must be struck between the privacy interest of individuals and the safety of police officers in performing their duty. I would hold that when police execute a search warrant for narcotics in a place of known narcotics activity they may protect themselves by conducting a Terry search. They are not required to assume that they will not be harmed by patrons of the kind of establishment shown here, something quite different from a ballroom at the Waldorf. "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, supra, 392 U.S., at 27, 88 S.Ct., at 1883. 25 I do not find it controlling that the heroin was not actually retrieved from appellant until the officer returned after completing the first search. The "cigarette pack with objects in it" was noticed in the first search. In the "second search," the officer did no more than return to the appellant and retrieve the pack he had already discovered. That there was a delay of minutes between the search and the seizure is not dispositive in this context, where the searching officer made the on-the-spot judgment that he need not seize the suspicious package immediately. He could first reasonably make sure that none of the patrons was armed before returning to appellant. Thus I would treat the second search and its fruits just as I would had the officer taken the pack immediately upon noticing it, which plainly would have been permissible. 26 Under this analysis, I need not reach the validity of the Illinois statute under which the Illinois court sustained the search. Parenthetically, I find the Court's failure to pass on the Illinois statute puzzling in light of the Court's holding that the searches were not authorized by Terry. 27 Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting. 28 On March 1, 1976, agents of the Illinois Bureau of Investigation executed a search warrant in the Aurora Tap Tavern in Aurora, Ill. The warrant was based on information given by a confidential informant who said that he had seen heroin on the person of the bartender and in a drawer behind the bar on at least 10 occasions. Moreover, the informant advised the affiant that the bartender would have heroin for sale on March 1. The warrant empowered the police to search the Aurora Tap and the person of "Greg," the bartender. 29 When police arrived at the Aurora Tap, a drab, dimly lit tavern, they found about a dozen or so persons standing or sitting at the bar. The police announced their purpose and told everyone at the bar to stand for a patdown search. Agent Jerome Johnson, the only officer to testify in the proceedings below, explained that the initial search was a frisk for weapons to protect the officers executing the warrant. Johnson frisked several patrons, including appellant Ybarra. During this patdown, Johnson felt "a cigarette pack with objects in it" in Ybarra's front pants pocket. He finished frisking the other patrons and then returned to Ybarra. At that time, he frisked Ybarra once again, reached into Ybarra's pocket, and removed the cigarette package that he had felt previously. The package, upon inspection, confirmed the officer's previously aroused suspicion that it contained not cigarettes but packets of heroin. 30 Confronted with these facts, the Court concludes that the police were without authority under the warrant to search any of the patrons in the tavern and that, absent probable cause to believe that Ybarra possessed contraband, the search of his person violated the Fourth and Fourteenth Amendments. Because I believe that this analysis is faulty, I dissent. 31 The first question posed by this case is the proper scope of a policeman's power to search pursuant to a valid warrant. This Court has had very few opportunities to consider the scope of such searches. An early case, Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), held that police could not seize one thing under a search warrant describing another thing. See also Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925) (warrant authorizing search of building used as a garage empowers police to search connecting rooms). Three other cases, Berger v. New York, 388 U.S. 41, 87 S.Ct. 1813, 18 L.Ed.2d 1040 (1967); United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974); and United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), examined the scope of a warrant in the context of electronic surveillance. A number of cases involving warrantless searches have offered dicta on the subject of searches pursuant to a warrant. See, e. g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 394, n. 7, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971) (Fourth Amendment confines officer executing a warrant "strictly within the bounds set by the warrant"). Closest for our purposes, though concededly not dispositive, is United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 225, 92 L.Ed. 210 (1948), a case involving the warrantless search of an occupant of an automobile. In that case the Court suggested that police, "armed with a search warrant for a residence only," could not search "all persons found" in the residence. 32 Faced with such a dearth of authority, it makes more sense than ever to begin with the language of the Fourth Amendment itself: 33 "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". 34 As often noted, the Amendment consists of two independent clauses joined by the conjunction "and." See, e. g., Go-Bart Co. v. United States, 282 U.S. 344, 356-357, 51 S.Ct. 153, 157-158, 75 L.Ed. 374 (1931). The first clause forbids "unreasonable searches and seizures" of "persons, houses, papers, and effects. . . . " The second clause describes the circumstances under which a search warrant or arrest warrant may issue, requiring specification of the place to be searched as well as the persons or things to be seized. 35 Much of the modern debate over the meaning of the Fourth Amendment has focused on the relationship between the reasonableness requirement and the warrant requirement. In particular, the central question has been whether and under what circumstances the police are entitled to conduct "reasonable" searches without first securing a warrant. As this Court has summarized: 36 "Some have argued that a determination by a magistrate of probable cause as a precondition of any search or seizure is so essential that the Fourth Amendment is violated whenever the police might reasonably have obtained a warrant but failed to do so. Others have argued with equal force that a test of reasonableness, applied after the fact of search or seizure when the police attempt to introduce the fruits in evidence, affords ample safeguard for the rights in question, so that '[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.' " Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564 (1971), quoting United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950). 37 Mr. Justice STEWART explained the current accommodation of the two clauses in Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967): "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." See also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). 38 Here, however, we must look to the language of the Fourth Amendment to answer a wholly different question: whether and under what circumstances the police the search a person present at the place named in a warrant. In this regard, the second clause of the Amendment, by itself, offers no guidance. It is merely a set of standards that must be met before a search warrant or arrest warrant may "issue." The restrictions on a policeman's authority to search pursuant to a warrant derive, of course, from the first clause of the Amendment, which prohibits all "unreasonable" searches, whether those searches are pursuant to a warrant or not. See Go-Bart Co. v. United States, supra, 282 U.S., at 357, 51 S.Ct., at 158. Reading the two clauses together, we can infer that some searches or seizures are per se unreasonable: searches extending beyond the place specified, cf. Steele v. United States, supra, or seizures of persons or things other than those specified. Cf. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). No such presumption is available to Ybarra here, however, because the second clause of the Amendment does not require the warrant to specify the "persons" to be searched.1 As this Court has noted in the context of electronic surveillance, " '[t]he Fourth Amendment requires a warrant to describe only "the place to be searched, and the persons or things to be seized," not the persons from whom things will be seized.' " United States v. Kahn, supra, 415 U.S., at 155, n. 15, 94 S.Ct., at 984, quoting United States v. Fiorella, 468 F.2d 688, 691 (CA2 1972).2 39 Nor, as a practical matter, could we require the police to specify in advance all persons that they were going to search at the time they execute the warrant. A search warrant is, by definition, an anticipatory authorization. The police must offer the magistrate sufficient information to confine the search but must leave themselves enough flexibility to react reasonably to whatever situation confronts them when they enter the premises. An absolute bar to searching persons not named in the warrant would often allow a person to frustrate the search simply by placing the contraband in his pocket. I cannot subscribe to any interpretation of the Fourth Amendment that would support such a result, and I doubt that this Court would sanction it if that precise fact situation were before it. 40 Recognizing that the authority to search premises must, under some circumstances, include the authority to search persons present on those premises,3 courts and legislatures have struggled to define the precise contours of that power. Some courts, for example, have required an indication that the person searched had a "connection" with the premises. See, e. g., Purkey v. Maby, 33 Idaho 281, 193 P. 79 (1920); State v. Massie, 95 W.Va. 233, 120 S.E. 514 (1923). These courts do not explain, however, what form that connection must take or how it might manifest itself to the police. Some States have relied on the Uniform Arrest Act, which allows police executing a warrant to detain and question a suspicious person for up to two hours. See, e. g., State v. Wise, 284 A.2d 292 (Del.Super.1971). Proponents of this approach fail to explain, however, how detention for questioning will produce any hidden contraband. Moreover, in light of the Fourth Amendment's requirement that the warrant specify the person to be "seized," it is at least arguable that this approach substitutes a greater constitutional intrusion for a lesser. Several other States, Illinois included, have simply passed over the constitutional question by identifying the permissible purposes for a search without specifying the circumstances under which that search can be conducted. Illinois' provision, for example, permits an officer to search persons present on the named premises 41 "(a) To protect himself from attack, or 42 "(b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant." Ill.Rev.Stat., ch. 38, § 108-9 (1975). 43 The generality of these attempts to define the proper limits of such searches does not mean, of course, that no limits exist. A person does not forfeit the protection of the Fourth Amendment merely because he happens to be present during the execution of a search warrant. To define those limits, however, this Court need look no further than the first clause of that Amendment and need ask no question other than whether, under all the circumstances, the actions of the police in executing the warrant were reasonable. Significantly, the concept of reasonableness in this context is different from the prevailing concept of reasonableness in the context of warrantless searches. In that latter context, as noted earlier, there is a tension between giving full scope to the authority of police to make reasonable searches and the inferred requirement that the police secure a judicial approval in advance of a search. In the past we have resolved that tension by allowing "jealously and carefully drawn" exceptions to the warrant requirement. See Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Katz v. United States, 389 U.S., at 357, 88 S.Ct., at 514. The rationale for drawing these exceptions closely is obvious. Loosely drawn, they could swallow the warrant requirement itself. 44 In this case, however, the warrant requirement has been fully satisfied. As a result, in judging the reasonableness of the search pursuant to the warrant, we need not measure it against jealously drawn exceptions to that requirement. Only once before, to my knowledge, has this Court been relieved of concern for the warrant requirement to the extent that we could give full scope to the notion of reasonableness. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), this Court considered the applicability of the Fourth Amendment to an on-the-street encounter between a policeman and three men who had aroused his suspicions. In upholding the ensuing "stop and frisk," this Court found the warrant requirement completely inapposite because "on-the-spot" interactions between police and citizens "historically [have] not been, and as a practical matter could not be, subjected to the warrant procedure." Id., at 20, 88 S.Ct., at 1879. The conduct in question had to be judged solely under "the Fourth Amendment's general proscription against unreasonable searches and seizures." Ibid. 45 The petitioner in Terry had sought a "rigid all-or-nothing model of justification and regulation under the [Fourth] Amendment," a model allowing the police to search some individuals completely and other individuals not at all. Such a model, however, would have overlooked "the utility of limitations upon the scope, as well as the initiation, of police actions as a means of constitutional regulation." Id., at 17, 88 S.Ct., at 1878. This Court, therefore, opted for a flexible model balancing the scope of the intrusion against its justification: 46 "In order to assess the reasonableness of [the challenged search] as a general proposition, it is necessary 'first to focus upon the governmental interest which allegedly justifies the official intrusion upon the constitutionally protected interests of the private citizen,' for there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.' " Id., at 20-21, 88 S.Ct., at 1879, quoting Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537, 87 S.Ct. 1727, 1733-1734, 1734-1735, 18 L.Ed.2d 930 (1967). 47 In the present case Ybarra would have us eschew such flexibility in favor of a rule allowing the police to search only those persons on the premises for whom the police have probable cause to believe that they possess contraband. Presumably, such a belief would entitle the police to search those persons completely. But such a rule not only reintroduces the rigidity condemned inTerry, it also renders the existence of the search warrant irrelevant. Given probable cause to believe that a person possesses illegal drugs, the police need no warrant to conduct a full body search. They need only arrest that person and conduct the search incident to that arrest. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). It should not matter of course, whether the arrest precedes the search or vice versa. See, e. g., United States v. Gorman, 355 F.2d 151, 159 (CA2 1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966); Holt v. Simpson, 340 F.2d 853, 856 (CA7 1965). 48 As already noted, I believe it error to analyze this case as if the police were under an obligation to act within one of the narrow exceptions to the warrant requirement, yet this is precisely what Ybarra would have us do. Whereas in Terry the warrant requirement was inapposite, here the warrant requirement has been fully satisfied. In either case we should give full scope to the reasonableness requirement of the first clause of the Fourth Amendment. Thus, in judging the reasonableness of a search pursuant to a warrant, which search extends to persons present on the named premises, this Court should consider the scope of the intrusion as well as its justification. 49 Viewed sequentially, the actions of the police in this case satisfy the scope/justification test of reasonableness established by the first clause of the Fourth Amendment as interpreted in Terry. The police entered the Aurora Tap pursuant to the warrant and found themselves confronting a dozen people, all standing or sitting at the bar, the suspected location of the contraband. Because the police were aware that heroin was being offered for sale in the tavern, it was quite reasonable to assume that any one or more of the persons at the bar could have been involved in drug trafficking. This assumption, by itself, might not have justified a full-scale search of all the individuals in the tavern. Nevertheless, the police also were quite conscious of the possibility that one or more of the patrons could be armed in preparation for just such an intrusion. In the narcotics business, "firearms are as much 'tools of the trade' as are most commonly recognized articles of narcotics paraphernalia." United States v. Oates, 560 F.2d 45, 62 (CA2 1977). The potential danger to the police executing the warrant and to innocent individuals in this dimly lit tavern cannot be minimized. By conducting an immediate frisk of those persons at the bar, the police eliminated this danger and "froze" the area in preparation for the search of the premises. 50 Ybarra contends that Terry requires an "individualized" suspicion that a particular person is armed and dangerous. While this factor may be important in the case of an on-the-street stop, where the officer must articulate some reason for singling the person out of the general population, there are at least two reasons why it has less significance in the present situation, where execution of a valid warrant had thrust the police into a confrontation with a small but potentially dangerous, group of people. First, in place of the requirement of "individualized suspicion" as a guard against arbitrary exercise of authority, we have here the determination of a neutral and detached magistrate that a search was necessary. As this Court noted in Fisher v. United States, 425 U.S. 391, 400, 96 S.Ct. 1569, 1576, 48 L.Ed.2d 39 (1976), the Framers of the Fourth Amendment "struck a balance so that when the State's reason to believe incriminating evidence will be found becomes sufficiently great, the invasion of privacy becomes justified and a warrant to search and seize will issue." The question then becomes whether, given the initial decision to intrude, the scope of the intrusion is reasonable. 51 In addition, the task performed by the officers executing a search warrant is inherently more perilous than is a momentary encounter on the street. The danger is greater "not only because the suspect and officer will be in close proximity for a longer period of time, but also . . . because the officer's investigative responsibilities under the warrant require him to direct his attention to the premises rather than the person." W. LaFave, Search and Seizure § 4.9, pp. 150-151 (1978). To hold a police officer in such a situation to the same standard of "individualized suspicion" as might be required in the case of an on-the-street stop would defeat the purpose of gauging reasonableness in terms of all the circumstances surrounding an encounter. 52 Terry suggests an additional factor that courts must consider when confronting an allegedly illegal frisk for weapons. As this Court admitted in that case,"[t]he exclusionary rule has its limitations . . . as a tool of judicial control." 392 U.S., at 13, 88 S.Ct., at 1875. Premised as that rule is on the hypothesis that police will avoid illegal searches if threatened with exclusion of the fruits of such searches, "it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal." Id., at 14, 88 S.Ct., at 1876. Where, as here, a preliminary frisk is based on an officer's well-honed sense of self-preservation, I have little doubt that "the [exclusionary] rule is ineffective as a deterrent." Id., at 13, 88 S.Ct., at 1875. 53 Measured against the purpose for the initial search is the scope of that search. I do not doubt that a patdown for weapons is a substantial intrusion into one's privacy. See Terry v. Ohio, 392 U.S., at 17, n. 13, 88 S.Ct., at 1877. Nevertheless, such an intrusion was more than justified, under the circumstances here, by the potential threat to the lives of the searching officers and innocent bystanders. In the rubric of Terry itself, a "man of reasonable caution" would have been warranted in the belief that it was appropriate to frisk the 12 or so persons in the vicinity of the bar for weapons. See id., at 21-22, 88 S.Ct., at 1879-1880. Thus, the initial frisk of Ybarra was legitimate. 54 During this initial patdown, Officer Johnson felt something suspicious: a cigarette package with objects in it. The record below is not entirely clear as to the shape or texture of the objects, but it is clear that Officer Johnson had at least a subjective suspicion that the objects were packets of heroin like those described in the warrant. He testified, for example, that after patting down the other persons at the bar, he returned directly to Ybarra to search him "for controlled substances." App. 49. At this point, he reached into Ybarra's pants pocket, removed the cigarette package, and confirmed his suspicion. 55 While the test of reasonableness under the Fourth Amendment is necessarily objective as opposed to subjective, see Terry v. Ohio, supra, at 21-22, 88 S.Ct., at 1879-1880. Officer Johnson's subjective suspicions help fill out his cryptic description of the "objects" that he felt in Ybarra's pocket. The objects clearly did not feel like cigarettes.4 In this case we need not decide whether, as a general rule, an officer conducting an on-the-street frisk under Terry can carry his search into the pockets of a suspect to examine material that he suspects to be contraband. We are dealing here with a case where the police had obtained a warrant to search for precisely the item that Officer Johnson suspected was present in Ybarra's pocket. Whether Officer Johnson's level of certainty could be labeled "probable cause," "reasonable suspicion," or some indeterminate, intermediate level of cognition, the limited pursuit of his suspicions by extracting the item from Ybarra's pocket was reasonable. The justification for the intrusion was linked closely to the terms of the search warrant; the intrusion itself was carefully tailored to conform to its justification. 56 The courts below reached a similar conclusion. The trial court noted correctly that "[i]t might well not be reasonable to search 350 people on the first floor of Marshall Field, but we're talking about, by description, a rather small tavern." See App. 43. The question as understood by the trial court, was the "reasonableness" of the intrusion under all the surrounding circumstances. Ibid. The Illinois Appellate Court agreed. In an earlier case, People v. Pugh, 69 Ill.App.2d 312, 217 N.E.2d 557 (1966), the Appellate Court had concluded that the police acted reasonably in searching the brother of the owner of the named premises during the execution of a search warrant for narcotics. According to the Appellate Court in that case, "[t]he United States Constitution prohibits unreasonable searches . . .; the search of Raymond Pugh under the circumstances of this case cannot be so classified." Id., at 316, 217 N.E.2d at 559. In this case, the Appellate Court relied expressly on the holding and reasoning in Pugh and found no constitutional violation in the searches of Ybarra. These findings should not be overturned lightly. 57 I would conclude that Officer Johnson, acting under the authority of a valid search warrant, did not exceed the reasonable scope of that warrant in locating and retrieving the heroin secreted in Ybarra's pocket. This is not a case where Ybarra's Fourth Amendment rights were at the mercy of overly zealous officers "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). On the contrary, the need for a search was determined, as contemplated by the second clause of the Fourth Amendment, by a neutral and detached magistrate, and the officers performed their duties pursuant to their warrant in an appropriate fashion. The Fourth Amendment requires nothing more. 1 The statute in question is Ill.Rev.Stat., ch. 38, § 108-9 (1975), which provides in full: "In the execution of the warrant the person executing the same may reasonably detain to search any person in the place at the time: "(a) To protect himself from attack, or "(b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant." 2 The warrant issued on March 1, 1976, did not itself authorize the search of Ybarra or of any other patron found on the premises of the Aurora Tap Tavern. It directed the police to search "the following person or place: . . . the Aurora Tap Tavern. . . . Also the person of 'Greg' . . . ." Had the issuing judge intended that the warrant would or could authorize a search of every person found within the tavern, he would hardly have specifically authorized the search of "Greg" alone. "Greg" was an employee of the tavern, and the complaint upon which the search warrant was issued gave every indication that he would be present at the tavern on March 1. 3 Ybarra concedes that the warrant issued on March 1, 1976, was supported by probable cause insofar as it purported to authorize a search of the premises of the Aurora Tap Tavern and a search of the person of "Greg," the bartender. 4 The Fourth Amendment directs that "no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized." Thus, "open-ended" or "general" warrants are constitutionally prohibited. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920; Marshall v. Barlow's, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819, 56 L.Ed.2d 305; United States v. Chadwick, 433 U.S. 1, 7-8, 97 S.Ct. 2476, 2481-2482, 53 L.Ed.2d 538; Stanford v. Texas, 379 U.S. 476, 480-482, 85 S.Ct. 506, 509-510, 13 L.Ed.2d 431. It follows that a warrant to search a place cannot normally be construed to authorize a search of each individual in that place. The warrant for the Aurora Tap Tavern provided no basis for departing from this general rule. Consequently, we need not consider situations where the warrant itself authorizes the search of unnamed persons in a place and is supported by probable cause to believe that persons who will be in the place at the time of the search will be in possession of illegal drugs. 5 Since we conclude that the initial patdown of Ybarra was not justified under the Fourth and Fourteenth Amendments, we need not decide whether or not the presence on Ybarra's person of "a cigarette pack with objects in it" yielded probable cause to believe that Ybarra was carrying any illegal substance. 6 Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824. 7 332 U.S., at 586, 68 S.Ct., at 224. 8 Id., at 587, 68 S.Ct., at 225. 9 "The Government says it would not contend that, armed with a search warrant for a residence only, it could search all persons found in it. But an occupant of a house could be used to conceal this contraband on his person quite as readily as can an occupant of a car. Necessity, an argument advanced in support of this search, would seem as strong a reason for searching guests of a house for which a search warrant had issued as for search of guests in a car for which none had been issued. By a parity of reasoning with that on which the Government disclaims the right to search occupants of a house, we suppose the Government would not contend that if it had a valid search warrant for the car only it could search the occupants as an incident to its execution. How then could we say that the right to search a car without a warrant confers greater latitude to search occupants than a search by warrant would permit?" Ibid. 10 Dunaway v. New York, 442 U.S., at 208, 99 S.Ct., at 2254, quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879. The circumstances of this case do not remotely approach those in which the Court has said that a search may be made on less than probable cause. In addition to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, see, e. g., Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305; United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116; South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87; Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930. 11 Our decision last Term in Michigan v. De Fillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343, does not point in a different direction. There we held that the Fourth and Fourteenth Amendments had not been violated by an arrest based on a police officer's probable cause to believe that the suspect had committed or was committing a substantive criminal offense, even though the statute creating the offense was subsequently declared unconstitutional. Here, the police officers acted on the strength of Ill.Rev.Stat., ch. 38, § 108-9 (1975), but that statute does not define the elements of a substantive criminal offense under state law. The statute purports instead to authorize the police in some circumstances to make searches and seizures without probable cause and without search warrants. This state law, therefore, falls within the category of statutes purporting to authorize searches without probable cause, which the Court has not hesitated to hold invalid as authority for unconstitutional searches. See, e. g., Torres v. Puerto Rico, 442 U.S. 465, 99 S.Ct. 2425, 61 L.Ed.2d 1; Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917; Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040. 1 Technically, the police must temporarily "seize" a person before they can search him. Such incidental seizures, however, never have been nor could be subjected to the warrant requirement. See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). See also infra, at 104-105. 2 The failure of the Fourth Amendment to require specification of the persons to be searched does not, of course, prohibit such specification. Thus, in the present case, the warrant specifically authorized the police to search Greg, the bartender. 3 As even a critic of the approach employed by the court below admitted, "a realistic appraisal of the situation facing the officer executing a search warrant compels the conclusion that under some circumstances a right to search occupants of the place named in the warrant is essential." LaFave, Search and Seizure: "The Course of True Law . . . Has Not . . . Run Smooth," 1966 Law Forum 255, 272. 4 In fact, Officer Johnson did testify that the objects felt exactly like what they were: heroin. See App. 9 ("I felt some objects that I felt to be heroin"). See also id., at 50 ("I felt objects in his pocket which I believed—"). In both cases defense counsel interposed objections to Officer Johnson's characterization of the objects, which objections the trial court sustained.

01

444 U.S. 130 100 S.Ct. 363 62 L.Ed.2d 275 BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK et al., Petitioners,v.Patricia Roberts HARRIS, Secretary of Health, Education, and Welfare, et al. No. 78-873. Argued Oct. 9 and 10, 1979. Decided Nov. 28, 1979. Syllabus Section 702(b) of the Emergency School Aid Act (ESAA or Act) states that the Act's purpose is to provide federal financial assistance "to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools," to encourage "the voluntary elimination, reduction, or prevention of minority group isolation" in such schools, and to aid schoolchildren "in overcoming the educational disadvantages of minority group isolation." Section 703 pronounces as federal policy that guidelines and criteria established pursuant to the Act should "be applied uniformly in all regions of the United States." And § 706(d)(1)(B) declares an educational agency ineligible for assistance if, after the date of the Act, it had in effect any practice "which results in the disproportionate demotion or dismissal of instructional or other personnel from minority groups" or "otherwise engage[s] in discrimination . . . in the hiring, promotion, or assignment of employees." Petitioner Board of Education's applications for ESAA assistance were denied by the Department of Health, Education, and Welfare (HEW), based upon statistical evidence flowing from a compliance investigation under Title VI of the Civil Rights Act of 1964 and showing a pattern of racially disproportionate assignments of minority teachers in the school system in relation to the number of minority students enrolled at the respective schools. No substantive rebuttal or explanation for the statistical disparities was presented. Petitioner Board then brought suit in District Court for declaratory and injunctive relief, claiming that the racially disproportionate teacher assignments resulted from provisions of state law, provisions of collective-bargaining agreements, licensing requirements for particular teaching positions, a bilingual-instruction consent decree, and demographic changes in student population. The District Court concluded that HEW should have considered these proffered justifications for the statistical disparities, and remanded the case to HEW for further consideration. On remand, HEW determined that such justifications did not adequately rebut the prima facie evidence of discrimination established by the statistics, and the District Court upheld HEW's finding of ineligibility and denied relief. The Court of Appeals affirmed, rejecting petitioner Board's contention that HEW was required to establish that the statistical disparities resulted from purposeful or intentional discrimination in the constitutional sense. Held: 1. Discriminatory impact is the standard by which ineligibility under ESAA is to be measured, irrespective of whether the discrimination relates to "demotion or dismissal of instructional or other personnel" or to "the hiring, promotion, or assignment of employees." The overall structure of the Act, Congress' statements of purpose and policy in §§ 702 and 703, the legislative history, and the text of § 706(d)(1)(B) all point in the direction of such a disparate-impact test. To treat as ineligible only an applicant with a past or a conscious present intent to perpetuate racial isolation would defeat the stated objective of ending de facto as well as de jure segregation. Pp. 140-150. 2. A prima facie case of discriminatory impact may be made by a proper statistical study. The burden of rebutting such a statistical case is on the petitioner Board. P. 151. 2 Cir., 584 F.2d 576, affirmed. Joseph F. Bruno, New York City, for petitioners. Sol. Gen., Wade H. McCree, Jr., Washington, D. C., for respondents. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 This case presents a narrow, but important, issue of statutory interpretation. It concerns a school district's eligibility for federal financial assistance under the 1972 Emergency School Aid Act (ESAA or Act), 86 Stat. 354, as amended, 20 U.S.C. §§ 1601-1619.1 Because the federal funds available under the Act are limited, educational agencies compete for those funds. 2 * By § 702(a) of the Act, 86 Stat. 354, 20 U.S.C. § 1601(a), Congress found "that the process of eliminating or preventing minority group isolation and improving the quality of education for all children often involves the expenditure of additional funds to which local educational agencies do not have access." Accordingly, in § 702(b), Congress stated that the purpose of the legislation was to provide financial assistance "to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools," to encourage "the voluntary elimination, reduction, or prevention of minority group isolation" in such schools, and to aid schoolchildren "in overcoming the educational disadvantages of minority group isolation." Section 703 pronounced as United States policy that guidelines and criteria established pursuant to the Act should "be applied uniformly in all regions of the United States." And, by § 706(d)(1), an educational agency was expressly declared ineligible for assistance if, after the date of the Act (June 23, 1972), it 3 "(B) had in effect any practice, policy, or procedure which results in the disproportionate demotion or dismissal of instructional or other personnel from minority groups in conjunction with desegregation or the implementation of any plan or the conduct of any activity described in this section, or otherwise engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees of the agency."2 4 The Act, in § 710(a), provides that an agency desiring to receive assistance for a fiscal year shall submit an application "at such time, in such form, and containing such information" as the Assistant Secretary for Education of the Department of Health, Education, and Welfare (HEW) "shall require by regulation." The application is then reviewed by that office and is ranked according to criteria set out in § 710(c), as implemented by regulation. See 45 CFR § 185.14 (1978). The essential first step is a determination3 that the applicant is not ineligible under § 706(d)(1). This determination is made initially by HEW's Office for Civil Rights. The burden, presumably, is on the applicant to establish its eligibility. II 5 Petitioner Board of Education of the City School District of the City of New York filed three applications for ESAA assistance for the fiscal year 1977-1978. Its revised Basic Grant Application, the only one now at issue, was given a sufficiently favorable ranking so as initially to be considered for funding in the amount of $3,559,132. On July 1, 1977, however, HEW by letter informed the Board that it did not meet the Act's eligibility requirements. App. 27. In line with the provisions of 45 CFR § 185.46(b) (1978), an informal meeting was held on July 22. Although HEW then withdrew some of its adverse findings, it still concluded that the Board had not demonstrated a sufficient basis for revocation of its determination of ineligibility. HEW reasoned that, in the language of 45 CFR § 185.43(b)(2) (1978), the Board's "assignment of full-time classroom teachers to [its] schools [was] in such a manner as to identify [one or more] of such schools as intended for students of a particular race, color, or national origin." 6 The ineligibility determination rested upon statistics developed by HEW's Office for Civil Rights during a 1976 compliance investigation of the Board's school system under Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d et seq. From these statistics, HEW concluded that it was possible to identify a number of schools as intended for either minority or nonminority students, solely because of the composition of the faculties. The statistics revealed that, during the 1975-1976 school year, 62.6% of high school pupils were members of a minority, but only 8.3% of high school teachers were minority members. Further, 70% of the minority high school teachers were assigned to schools at which the minority student enrollments exceeded 76%. Conversely, in those high schools where minority student enrollments were less than 40%, there was a disproportionately low percentage of minority teachers. App. 29, 42-43. 7 The statistical study showed like patterns at the junior high and elementary levels. The percentage of minority junior high teachers was 16.7, and these teachers were concentrated in districts with the highest percentages of minority students. Id., at 29. For the elementary schools, the citywide percentage of minority teachers was 14.3, and these were placed primarily in districts with the largest minority student enrollments. Id., at 28-29. HEW also relied upon findings it had made earlier that the Board was in violation of Title VI of the 1964 Act. 8 At the informal meeting of July 22, HEW limited its inquiry to the accuracy of the statistics upon which it had rested its decision to deny funding. No substantive rebuttal or explanation for the statistical disparities was presented. On September 16, 1977, HEW issued its formal opinion adhering to its decision of July 1 to deny funding. Brief for Petitioners 8. 9 The present action then was promptly instituted in the United States District Court for the Eastern District of New York to obtain declaratory relief, to enjoin HEW from enforcing its determination of ineligibility, and to award the initially earmarked funds to the Board.4 The complaint contained no challenge to the accuracy or sufficiency of HEW's statistics. Rather, petitioner Board took the position that the racially disproportionate teacher assignments resulted from provisions of state law, from provisions of collective-bargaining agreements, from licensing requirements for particular teaching positions, from a consent decree relating to bilingual instruction (Aspira of New York, Inc. v. Board of Education, 72 Civ. 4002 (SDNY Aug. 29, 1974); see Aspira of New York, Inc. v. Board of Education, 65 F.R.D. 541 (SDNY 1975)), and from demographic changes in student population. The Board expressly denied that it had engaged in intentional or purposeful discrimination. App. 134-149. 10 Initially, the District Court, after its review of the administrative record and after a hearing, denied the Board's motion for summary judgment and granted HEW's cross-motion, thus affirming the denial of funding. The court said: 11 "[T]here was a reasonable basis for a decision that it had so discriminated. This Court's powers are extremely limited. In this respect, considering the high school statistics, the State statutes, the United Federation of Teachers agreements, the wishes of individual Black principals, the desires of the individual Parent-Teachers Associations, community school board and Black and White communities, the Administrator could find a practice, policy or procedure after June 23, 1972, resulting in the identification of schools as intended for students of a particular race, color or national origin through the assignment of teachers to those schools. 12 "Accordingly, with the greatest reluctance because it is the children of the schools who will suffer from this decision of the Administrator, the Court grants the Government's motion for summary judgment." Id., at 69-70. 13 The Board's request for reargument, however, was granted. The District Court then concluded that HEW should have considered the justifications proffered for the statistical disparities. The matter was therefore remanded to HEW for further consideration consistent with an opinion the court issued. In that opinion, the court stated: 14 "The relevant statute, regulations and cases indicate a failure of H. E. W. Before declaring a school board ineligible for ESAA funds, H. E. W. must find either that (1) the school board was maintaining an illegally segregated school system on June 23, 1972 and it took no effective steps to desegregate after that date or (2) it had a practice after June 23, 1972 that was segregative in intent, design or foreseeable effect. It may rely on statistics alone to make this finding, but it may not ignore evidence tending to rebut the inferences drawn from the statistics. 15 * * * * * 16 [T]he Constitution mandates that the plaintiffs must have an opportunity to rebut a statistical prima facie case of discrimination." App. to Pet. for Cert. 102-104. 17 After the administrative hearing on remand, HEW notified the Board that its explanation for the racially identifiable staffing patterns did not adequately rebut the prima facie evidence of discrimination established by the statistics. This determination centered on disparities in 10 of the 110 secondary schools operated by the Board and serving predominantly nonminority student bodies. App. 109-110. HEW's letter of March 22, 1978, to the Chancellor discussed the several justifications offered and concluded that each was insufficient. Id., at 102-114. 18 The Board once again sought relief in the District Court. On April 18, that court upheld HEW's finding of ineligibility as supported by substantial evidence, and denied relief. Id., at 150-153. The Board appealed and obtained a stay preserving the funds at issue pending appellate review. 19 The Court of Appeals affirmed. Board of Education of City School Dist. v. Califano, 584 F.2d 576 (CA2 1978). On the appeal, the Board still did not contest the finding that certain of its schools were racially identifiable "as a result of the significant disparities in staff assignments." Id., at 585. The Board, instead, argued that HEW was required "to establish that the disparities resulted from purposeful or intentional discrimination in the constitutional sense." Ibid. The Court of Appeals rejected this contention. It held that Congress has the authority "to establish a higher standard, more protective of minority rights, than constitutional minimums require," and that "Congress intended to permit grant disqualification not only for purposeful discrimination but also for discrimination evidenced simply by an unjustified disparity in staff assignments." Id., at 588. It further concluded that HEW's denial of funding was not arbitrary or capricious. Id., at 589. The several proffered justifications were either inadequate to explain the disparities or were unsupported by facts appearing on the record. Ibid. 20 Because of the importance of the issue, we granted certiorari. Sub nom. Board of Education of City School Dist. v. Califano, 440 U.S. 905, 99 S.Ct. 1211, 59 L.Ed.2d 453 (1979). The stay preserving the funds remains in effect. See Fed.Rule App.Proc. 41(b). III 21 Our primary concern is with the intent of Congress. Section 706 sets forth the eligibility criteria for ESAA funding. In subsection (a)(1) it authorizes a grant to a local educational agency that (i) is implementing a desegregation plan approved by a court, or by HEW "as adequate under title VI of the Civil Rights Act of 1964," or (ii), "without having been required to do so," has a plan to eliminate or reduce minority group isolation. 22 Critical to the resolution of the issue in this case, however, are the ineligibility provisions of § 706(d)(1)(B), quoted above in Part I of this opinion. Ineligibility comes about if the agency either has in effect a practice "which results in the disproportionate demotion or dismissal of . . . personnel from minority groups," or "otherwise engage[s] in discrimination . . . in the hiring, promotion, or assignment of employees." The mere reading of this language reveals that it suffers from imprecision of expression and less than careful draftsmanship. The first portion clearly speaks in terms of effect or impact. The second portion, arguably, might be said to possess an overtone of intent. There is nothing specifically indicating that this difference exists or, if it does, that it was purposefully drawn by Congress. The existence and significance of the difference are important for petitioner Board, for we are concerned here not with "disproportionate demotion or dismissal of . . . personnel," but with racial "discrimination" in the "assignment of employees." 23 The Board, as a consequence, argues that it was not the aim of Congress to permit HEW to find that an applicant was ineligible for funding because of its staff assignments unless those assignments were purposefully discriminatory and thus violative of the Equal Protection Clause of the Fourteenth Amendment; it follows, says the Board, that disproportionate impact alone, without proof of purposeful discrimination, is insufficient. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); and Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), are cited. The Board, in other words, would have us interpret the assignment clause as one imposing a constitutional standard. It contends that the test under Title VI of the 1964 Civil Rights Act also provides the measure under ESAA of disqualifying discrimination and of ineligibility. It claims that HEW's finding of intentional discrimination erroneously relied upon a foreseeability test, and that, even if such a test were applicable, the finding was based solely on statistical evidence of disparate impact and that such evidence is insufficient. 24 Respondents, in their turn, preliminarily assert that it is unnecessary to argue about the correctness of HEW's finding on the administrative record, and that it is also unnecessary to pursue the dictum of the Court of Appeals to the effect that Title VI condemns practices having a disparate racial impact, although no purposeful discrimination is shown. See 584 F.2d, at 589; but see Parent Assn. of Andrew Jackson High School v. Ambach, 598 F.2d 705, 715-716 (CA2 1979). Respondents argue that there is no place here for equivocation: under 45 CFR § 185.43(b)(2) (1978), an agency is ineligible for funding if it has assigned full-time teachers to schools "in such a manner as to identify any of such schools as intended for students of a particular race, color, or national origin." This, it is said, is an objective criterion. Respondents note that the Board's only argument is that on the record no finding properly could be made that the assignment patterns resulted from intentional or purposeful discrimination, and thus, unless the constitutional standard applies, the Board effectively has conceded that the denial of funds was permissible. For the respondents, then, the sole issue is whether the Act authorizes the withholding of funds when the applicant's faculty assignments, although not shown to amount to purposeful racial discrimination violative of the Equal Protection Clause, are not justified by educational needs. IV 25 Intent v. Impact. The denial of funds to the Board resulted from a violation of HEW's regulation, that is, teacher assignments that served to identify certain schools racially. This led to ineligibility irrespective of whether it was the product of purposeful discrimination. The controversy thus comes down to the question whether that interpretation by regulation is consistent with the governing statute. While perhaps it might be possible to theorize and to parse the language of § 706(d)(1)(B), as the Board so strongly urges, in such a way as to conclude that impact alone is sufficient for ineligibility with respect to "demotion or dismissal," but intent is necessary with respect to "assignment of employees," we conclude that the wording of the statute is ambiguous. This requires us to look closely at the structure and context of the statute and to review its legislative history. When we do this, we are impelled to a conclusion adverse to the Board's positionhere. We hold that impact or effect governs both prongs of the ineligibility provision of § 706(d)(1)(B). The overall structure of the Act, Congress' statements of purpose and policy, the legislative history, and the text of § 706(d)(1)(B) all point in the direction of an impact test. 26 A reading of the Act in its entirety indisputably demonstrates that Congress was disturbed about minority segregation and isolation as such, de facto as well as de jure, and that, with respect to the former, it intended the limited funds it made available to serve as an enticement device to encourage voluntary elimination of that kind of segregation. The Board acknowledges that the Act was conceived in part to provide "a financial impetus to de facto segregated systems to voluntarily desegregate." Brief for Petitioners 22. 27 That it was effect, and not intent, that was dominant in the congressional mind when ESAA was enacted is apparent from the specific findings set forth in § 702. Congress' concern was stated expressly to be about "minority group isolation and improving the quality of education for all children." The stated purpose of the legislation was the elimination of this isolation. The focus clearly is on actual effect, not on discriminatory intent. Furthermore, the pronouncement of federal policy, set forth in § 703, speaks in terms of national uniformity with respect to "conditions of segregation by race" in the schools. All "guidelines and criteria," presumably including those governing ineligibility, must "be applied uniformly," and "without regard to the origin or cause of such segregation." This, too, looks to effect, not purpose. 28 There can be no disagreement about the underlying philosophy of the Act. At the time of ESAA's passage, it was generally believed that the courts, when implementing the Constitution, could not reach de facto segregation. See, e. g., 117 Cong.Rec. 11519 (1971) (remarks of Sen. Mondale). Congress, apparently, was not then in much of a mood to mandate a change in the status quo. The midground solution found and adopted was the enticement approach "to encourage the voluntary elimination, reduction, or prevention of minority group isolation," as § 702(a)(2) of the Act recites. Thus, it would make no sense to allow a grant to a school district that, although not violating the Constitution, was maintaining a de facto segregated system. To treat as ineligible only an applicant with a past or a conscious present intent to perpetuate racial isolation would defeat the stated objective of ending de facto as well as de jure segregation. 29 Other provisions of the Act indicate that an effect test is the Act's rule, not its exception. Section 706(d)(1)(A) disqualifies an agency that transfers property or makes services available to a private school or system without first determining ("knew or reasonably should have known") that the recipient does not discriminate. Here, plainly, ineligibility results from something other than invidious motive; the applicant is ineligible even when it is merely negligent in failing to discover the character of the recipient's operations. Similarly, § 706(d)(1)(C), which has to do with the assignment of children to particular classes within a school, provides for ineligibility whenever "any procedure . . . results in the separation of minority group from nonminority group children for a substantial portion of the school day." The only exception is where there is "bona fide ability grouping." These strike us as "effect," not "intent," provisions.5 30 Close analysis of § 706(d)(1)(B), the specific provision at issue, also convinces us that its focus is on impact, not intent. The Board concedes, almost inescapably, that with respect to disproportionate demotion or dismissal of personnel, Congress imposed only an objective or disparate-impact test. Brief for Petitioners 25; Tr. of Oral Arg. 5-6. We agree. Unless a solid reason for a distinction exists, one would expect that, for such closely connected statutory phrases, a similar standard was to apply to assignment of employees. The presence of the word "otherwise" in the second portion of § 706(d)(1)(B) ("or otherwise engaged in discrimination . . . in the . . . assignment of employees"), while perhaps not persuasive in itself alone, is not without significance. It lends weight to the argument that a disparate-impact standard also controls assignment practices. 31 We also find support for this interpretation in the Report of the Senate Committee on Labor and Public Welfare concerning the Emergency School Aid and Quality Integrated Education Act of 1971, which was one of the proposed ESAA bills: 32 "This clause [the one that later became § 706(d)(1)(B) of ESAA] renders ineligible any local educational agency which discriminates in its employment practices, and specifically presumes one practice to be discriminatory: the disproportionate demotion or dismissal of instructional or other personnel from minority groups in conjunction with desegregating its schools or establishing integrated schools." S.Rep.No. 92-61, p. 41 (1971). 33 The words "presumes one practice" are emphasized by the Board, however, and are claimed to indicate that the Senate Committee was making "a significant and conscious distinction between the language of the section which relates to 'demotion or dismissal' and that which relates to 'hiring, promotion or assignment.' " Brief for Petitioners 26. 34 If there is a distinction between the two phrases, however, it is not inconsistent with the general impact orientation of § 706(d)(1)(B). For the impact approach itself embraces at least two separate standards: a rebuttable disparate-impact test and a stricter irrebuttable disproportionate-impact test. To the extent that the "demotion or dismissal" clause sets a higher standard for school boards to meet, it corresponds to the irrebuttable impact test. Indeed, another passage of the Senate Committee Report states: 35 "For the purposes of this bill, disproportionate demotion or dismissal of instructional or other personnel is considered discriminatory and constitutes per se a violation of this provision, when it occurs in conjunction with desegregation, the establishment of an integrated school, or reducing, eliminating or preventing minority group isolation." S.Rep.No. 92-61, at 18-19. 36 The reference to a per se violation strongly suggests that there was to be no excuse for a significant disparity in treatment of the races with respect to demotions or dismissals, "when [the disparity] occurs in conjunction with desegregation, the establishment of an integrated school, or reducing, eliminating or preventing minority group isolation." (Emphasis added.)6 In contrast, the rebuttable impact test governing hiring, promotion, and assignment, permits the school board to justify apparently disproportionate treatment. 37 Other aspects of the legislative history also are supportive of our interpretation. Not without relevance is the emergence of the so-called "Stennis Amendment," now § 703(a), that pronounced national policy. The concept of a nationally uniform standard was proposed by Senator Stennis of Mississippi in April 1971 in the debate on the proposed Emergency School Aid and Quality Integrated Education Act of 1971, S. 1557, 92d Cong., 1st Sess. (1971). See 117 Cong.Rec. 11508-11520 (1971). Proponents of the Amendment argued that school districts in the South were being forced to desegregate in order to receive federal emergency assistance, while those elsewhere could continue to receive such assistance despite existing segregation conditions.7 Opponents were concerned that the proposed amendment might be read as cutting back on desegregation efforts in States that had segregated their schools by law.8 The Stennis Amendment was adopted and was included in the final version of ESAA when it was enacted as Title VII of the Education Amendments of 1972. Senator Stennis summarized his proposal in the final debate.9 38 This history of § 703(a) indicates that the statute means exactly what it says: the same standard is to govern nationwide, and is to apply to de facto segregation as well as to de jure segregation.10 It suggests ineligibility rules that focus on actualities, not on history, on consequences, not on intent.11 39 The Board's reliance on a colloquy between Congressman Pucinski, ESAA's sponsor in the House, and Congressman Esch does not persuade us otherwise. Mr. Esch inquired whether "the Secretary [will] be authorized to apply the holding in the Singleton case [Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211 (CA5 1969), rev'd in part on other grounds sub nom. Carter v. West Feliciana Parish School Bd., 396 U.S. 290 [90 S.Ct. 608, 24 L.Ed.2d 477] (1970)]—which is that you have to have a perfect racial balance in the faculty in every single school in your district—as a condition or requirement for assistance under this program." Mr. Pucinski's response was: "The answer is absolutely not." 117 Cong.Rec. 39332 (1971). 40 While it might be argued that this passing exchange intimates some limit on HEW's ability to require complete elimination of de facto segregation as a condition of ESAA eligibility, we do not regard the regulation at issue here as at all inconsistent with the colloquy, and we find no indication in the legislative history that any Member of Congress voted in favor of the amendment in reliance on an understanding that it would weaken the eligibility conditions. See Cannon v. University of Chicago, 441 U.S. 677, 713-716, 99 S.Ct. 1946, 1964-1968, 60 L.Ed.2d 560 (1979). HEW, by its regulation, does not require faculties to be in perfect racial balance. It prohibits only faculty assignments that make schools racially identifiable. That is a much narrower requirement. 41 Finally, there is some significance in the fact that Congress was aware of HEW's existing regulation when ESAA was reenacted in 1978. See n. 1, supra. The House version included a waiver-of-ineligibility provision to respond to complaints about the application of the regulation to Los Angeles and New York City. See H.R.Rep.No.95-1137, pp. 95-96 (1978), U.S.Code Cong. & Admin.News 1978, p. 4971.12 The waiver provision was dropped in the Conference Committee Report. See H.R.Conf.Rep.No.95-1753, p. 286 (1978), U.S.Code Cong. & Admin.News 1978, p. 4971. It is of interest to note that the president of the American Federation of Teachers, as a witness, recommended to the Senate "that the ESAA be reformed to require a finding of discrimination, not simply a numerical imbalance, before ESAA funds can be cut off." Education Amendments of 1977, Hearings on S.1753 before the Subcommittee on Education, Arts and Humanities of the Senate Committee on Human Resources, 95th Cong., 1st Sess., pt. 1, p. 1275 (1977) (emphasis added). No such change, however, was made. This strongly suggests that Congress acquiesced in HEW's interpretation of the statute. See Andrus v. Allard, 444 U.S. 51, 57, 100 S.Ct. 318, 322-323, 62 L.Ed.2d 210; NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974). 42 There is no force in the suggestion that a decision adverse to the Board here will serve to harm or penalize the very children who are the objects of the beneficial provisions of the Act. A ruling of ineligibility does not make the children who attend the New York City schools any worse off; it does serve to deny them benefits that in theory would make them better off. The funds competed for, however, are not wasted, for they are utilized, in any event, to benefit other similarly disadvantaged children. It is a matter of benefit, not of deprival, and it is a matter of selectivity. 43 For these several reasons, we readily conclude that the discrimination that disqualifies for funding under ESAA is not discrimination in the Fourteenth Amendment sense. Disproportionate impact in assignment of employees is sufficient to occasion ineligibility. Specific intent to discriminate is not an imperative. There thus is no need here for the Court to be concerned with the issue whether Title VI of the Civil Rights Act of 1964 incorporates the constitutional standard. See University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Consideration of that issue would be necessary only if there were a positive indication either in Title VI or in ESAA that the two Acts were intended to be coextensive. The Board stresses the fact that a desegregation plan approved by HEW as sufficient under Title VI is expressly said to satisfy the eligibility requirements of § 706(a). The ineligibility provisions of § 706(d), however, contain additional requirements, and there is no indication that mere compliance with Title VI satisfies them. Nor does the fact that a violation of Title VI makes a school system ineligible for ESAA funding mean that only a Title VI violation disqualifies. 44 It does make sense to us that Congress might impose a stricter standard under ESAA than under Title VI of the Civil Rights Act of 1964. A violation of Title VI may result in a cutoff of all federal funds, and it is likely that Congress would wish this drastic result only when the discrimination is intentional. In contrast, only ESAA funds are rendered unavailable when an ESAA violation is found. And since ESAA funds are available for the furtherance of a plan to combat de facto segregation, a cutoff to the system that maintains segregated faculties seems entirely appropriate. The Board's proffered distinction between funding and eligibility, that is, that a de jure segregated system was to be required to desegregate in order to receive assistance, but a de facto system was not, contravenes the basic thrust of ESAA. We are not persuaded by the suggestions to the contrary in Board of Education, Cincinnati v. HEW, 396 F.Supp. 203, 255 (SD Ohio 1975), aff'd in part and rev'd in part on other grounds, 532 F.2d 1070 (CA6 1976), and in Bradley v. Milliken, 432 F.Supp. 885, 886-887 (ED Mich.1977).13 45 Proof of Impact. It is unnecessary to indulge in any detailed comment about the proof of impact in this case. The Court of Appeals did not discuss whether the statistical evidence flowing from the 1976 compliance investigation established a prima facie case. This apparently was because petitioners did not challenge the accuracy or sufficiency of respondents' data and statistics, but relied on justifications to explain the statistical disproportions in teacher assignments. 46 As we have indicated, the disparate-impact test in the second part of § 706(d)(1)(B) is rebuttable. We conclude, however, that the burden is on the party against whom the statistical case has been made. See Castaneda v. Partida, 430 U.S. 482, 497-498, and n. 19, 97 S.Ct. 1272, 1281-1282, and n. 19, 51 L.Ed.2d 498 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). That burden perhaps could be carried by proof of "educational necessity," analogous to the "business necessity" justification applied under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq.; see, e. g., Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977); Furnco Construction Corp. v. Waters, 438 U.S. 567, 581-583, 98 S.Ct. 2943, 2952-2953, 57 L.Ed.2d 957 (1978) (dissenting opinion). 47 The Court of Appeals ruled that each of the justifications asserted by petitioners, which included compliance with requirements of state law and collective-bargaining agreement, teacher preferences, unequal distributions of licenses in certain areas, compliance with the provisions of the bilingual instruction consent decree, and demographic changes in student population, either was insufficient as a matter of law or was not supported by evidence in the record. Petitioners did not contest these conclusions in their petition for a writ of certiorari or in their brief in this Court. Thus, we express no opinion on whether any of the justifications proffered by the Board would satisfy its burden. V 48 In sum, we hold that discriminatory impact is the standard by which ineligibility under ESAA is to be measured, irrespective of whether the discrimination relates to "demotion or dismissal of instructional or other personnel" or to "the hiring, promotion, or assignment of employees"; that a prima facie case of discriminatory impact may be made by a proper statistical study and, in fact, was so made here; and that the burden of rebutting that case was on the Board. 49 The judgment of the Court of Appeals is affirmed. 50 It is so ordered. 51 Mr. Justice STEWART, with whom Mr. Justice POWELL and Mr. Justice REHNQUIST join, dissenting. 52 The Court holds that the Emergency School Aid Act of 1972 (ESAA)1 renders ineligible for ESAA funding any school district whose faculty assignment policies have resulted in racial disparities, even in the total absence of any evidence of intentional racial discrimination. I disagree. It is my view that a school district is ineligible to receive ESAA funds only if it has acted with a racially discriminatory motive or intent in its faculty assignment policies. 53 * The controversy in this case turns on the proper construction of § 706(d)(1)(B) of ESAA, which provides: 54 "No educational agency shall be eligible for assistance under this chapter if it has, after June 23, 1972— 55 * * * * * 56 "(B) had in effect any practice, policy, or procedure which results in the disproportionate demotion or dismissal of instructional or other personnel from minority groups in conjunction with desegregation or the implementation of any plan or the conduct of any activity described in this section, or otherwise engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees of the agency . . . ." (Emphasis added.) 57 Since the only discriminatory activity alleged in this case involves the assignment of teachers, the inquiry must focus on the second (italicized) clause of § 706(d)(1)(B). The precise question is what Congress intended when it used the phrase "or otherwise engaged in discrimination". 58 In deciding that question, the starting point is the language of the statute itself. See, e. g., Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 2361. That language, as the positions of the parties to this suit confirm, may be read in two different ways. The first, that urged by the respondents and endorsed by the Court, is that the ineligibility standard under the second clause of § 706(d)(1)(B), like that under the first clause, turns solely on a finding of disparate racial impact. This reading is supported by the argument that the second clause, which renders ineligible for ESAA funding any school district "engaged in discrimination . . . in the hiring, promotion, or assignment of employees" is linked by the word "otherwise" to the first clause, which unambiguously contains a disparate-impact standard. The argument thus is based on the doctrine of ejusdem generis, construing the word "otherwise" to mean "in a similar manner" or "similarly." The second way to read the statute, that urged by the petitioners, is to find different ineligibility standards in the two clauses of § 706(d)(1)(B)—disparate impact alone under the first clause, and discriminatory motive or intent under the second. This reading of the statute is supported by the fact that although the first clause of § 706(d)(1)(B) is explicitly written in terms of disproportionate impact, the second clause is framed in terms that, as the Court today perceives, "possess an overtone of intent."2 Ante, at 139. Since the meaning of § 706(d)(1)(B) is thus concededly ambiguous, it is necessary to look beyond the statutory words in order to ascertain their meaning. II 59 That inquiry may appropriately focus on whether the intent of Congress can be determined from a consideration of the legislative history of § 706(d)(1)(B) itself, or of other provisions of ESAA.3 60 * The legislative history of the specific provision in issue reveals that the language that ultimately was enacted in § 706(d)(1)(B) first appeared in S.1557, 92d Cong., 1st Sess., a bill reported out of the Senate Committee on Labor and Public Welfare in 1971. In explaining the language at issue here, the Committee noted: 61 "The phrase 'disproportionate demotion or dismissal of instructional or other personnel from minority groups' is not modified or in any way diminished by the subsequent phrase 'or otherwise engaged in discrimination based upon race, color or national origin,' which renders ineligible local educational agencies which have engaged in other discrimination, including discrimination in hiring, against minority group employees." S.Rep.No.92-61, p. 19 (1971) (emphasis added). 62 It is thus apparent that the Senate Committee that drafted the language now appearing in § 706(d)(1)(B) not only recognized a distinction between the ineligibility standards under the first and second clauses, but also regarded the standard of ineligibility under the first clause as more burdensome to the applicant than the standard under the second. 63 The purpose of this differentiation is also made clear in the legislative history. Congress singled out staff demotions and dismissals as appropriate for a disparate-impact standard because it was well documented that desegregation activities had in some States resulted in the wholesale firing of Negro faculty members: "HEW statistics indicate that between 1968 and 1970, in the States within the Fifth Judicial Circuit alone, the number of black teachers was reduced by 1,072, while the number of white teachers increased by 5,575." S.Rep.No.92-61, supra, at 18. These statistics so disturbed Congress that it adopted a per se rule of ineligibility for disproportionate demotions or dismissals of Negro faculty members in conjunction with desegregation activities, even at the cost of withholding ESAA funds from school districts that had in no way intentionally discriminated against Negro faculty members. 64 The legislative history of § 706(d)(1)(B) thus strongly suggests that the petitioners have advanced the proper interpretation of the statute. This reading of § 706(d)(1)(B), under which the first clause is governed by disparate impact and the second by motive or intent, is consistent with the fact that Congress not only recognized a distinction between the ineligibility standards under the first and second clauses, but also regarded the standard of ineligibility under the first clause as more burdensome to the applicant than the standard under the second. 65 Apparently recognizing that the legislative history cannot support a reading of § 706(d)(1)(B) that gives the same meaning to the ineligibility standards under its first and second clauses, the Court observes: 66 "If there is a distinction between the two phrases, however, it is not inconsistent with the general impact orientation of § 706(d)(1)(B). For the impact approach itself embraces at least two separate standards: a rebuttable disparate-impact test and a stricter irrebuttable disproportionate-impact test. To the extent that the 'demotion or dismissal' clause sets a higher standard for school boards to meet, it corresponds to the irrebuttable impact test." Ante at 143-144. 67 To draw this distinction between the two clauses is, however, totally at odds with the Court's earlier endorsement of the respondents' reading of the language of the provision. That reading depends wholly on the proposition that inasmuch as the first clause describes disparate impact, the presence of the word "otherwise" in the second clause "lends weight to the argument that a disparate-impact standard [is] also [the standard of ineligibility under the second clause]." Ante, at 143. It should follow that the standard contained in both clauses is the same that the second clause incorporates the irrebuttable disparate-impact standard embodied in the first. The Court's contrary suggestion that an irrebuttable standard is contained in the first clause, but only a rebuttable standard in the second, is nowhere in the Court's opinion squared with the Court's express agreement with the respondents' reading of the language of § 706(d)(1)(B).4 68 The fact of the matter is that the legislative history simply belies the respondents' reading of the statutory language. That history strongly supports the conclusion that, while the first clause of § 706(d)(1)(B) incorporates a disparate-impact standard, the second clause makes ineligibility depend upon discriminatory motive or intent. B 69 The other provisions of ESAA, and particularly the so-called Stennis Amendment, do not, it seems to me, support the weight the Court places upon them.5 70 The Stennis Amendment, enacted as § 703 of ESAA, 86 Stat. 354, provides: 71 "(a) It is the policy of the United States that guidelines and criteria established pursuant to [ESAA] shall be applied uniformly in all regions of the United States in dealing with conditions of segregation by race in the schools of the local educational agencies of any State without regard to the origin or cause of such segregation. 72 "(b) It is the policy of the United States that guidelines and criteria established pursuant to title VI of the Civil Rights Act of 1964 . . . shall be applied uniformly in all regions of the United States in dealing with conditions of segregation by race whether de jure or de facto in the schools of the local educational agencies of any State without regard to the origin or cause of such segregation." 73 The Court concludes that the Stennis Amendment and its legislative history "indicat[e] that the statute means exactly what it says: the same standard is to govern nationwide, and is to apply to de facto segregation as well as to de jure segregation. It suggests ineligibility rules that focus on actualities, not on history, on consequences, not on intent." Ante, at 146-147 (footnotes omitted). 74 My difficulty with this reasoning stems from the fact that the Stennis Amendment is applicable not only to ESAA, but also to Title VI of the Civil Rights Act of 1964, and the latter has been construed to contain not a mere disparate-impact standard, but a standard of intentional discrimination. In University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750, five Members of the Court concluded that Title VI, which prohibits discrimination in federally funded programs, prohibits only discrimination violative of the Fifth Amendment and the Equal Protection Clause of the Fourteenth. Id., at 281-287, 98 S.Ct., at 2744-2746 (POWELL, J.); id., at 328-355, 98 S.Ct., at 2768-2781 (BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.). Those constitutional provisions, in turn, have been construed to reach only purposeful discrimination. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597; Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. It thus follows from Bakke that Title VI prohibits only purposeful discrimination. 75 It is wholly incongruous to hold in this case that the Stennis Amendment supports a mere "disparate impact" reading of the term "discrimination" in § 706(d)(1)(B) of ESAA, when only two Terms ago five Members of the Court construed the prohibition against "discrimination" in federally funded programs under Title VI, which is equally subject to the Stennis Amendment, to incorporate a purposeful-discrimination test. If Congress in fact intended the Stennis Amendment to establish a uniform national standard prohibiting action leading to disparate racial impact, then it is difficult to understand why this standard should not govern Title VI as well as § 706(d)(1)(B).6 III 76 The conclusion that ineligibility under the second clause of § 706(d)(1)(B) depends upon a showing of a school district's purposeful discrimination is persuasively supported by the interpretations that have been given to analogous provisions of Title VI and Title VII of the Civil Rights Act of 1964. When Congress enacted ESAA in 1972, it was not writing on a clean slate. To the contrary, when Congress left undefined the term "discrimination" in the second clause of § 706(d)(1)(B), it had already enacted both Title VI of the 1964 Act, which provides that "[n]o person . . . shall . . . be subjected to discrimination under any program or activity receiving Federal financial assistance,"7 and § 703(a)(1) of Title VII of that Act, which provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin."8 These provisions are, in the absence of any explicit definition of "discrimination" in ESAA or its legislative history, a useful guide in determining what Congress intended when it concluded that school districts "engaged in discrimination" should be ineligible to receive ESAA funds. 77 Title VI and § 703(a)(1) of Title VII point clearly toward the necessity of finding discriminatory motive or intent in order to hold a school district ineligible under the second clause of § 706(d)(1)(B).9 Title VI, as already pointed out, has been construed to prohibit only discrimination violative of the Fifth Amendment or the Equal Protection Clause of the Fourteenth, University of California Regents v. Bakke, 438 U.S., at 281-287, 98 S.Ct., at 2744-2746 (POWELL, J.); id., at 328-355, 98 S.Ct., at 2768-2781 (BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.); and, in turn, those constitutional provisions have been construed to prohibit only purposeful discrimination, Dayton Board of Education v. Brinkman, supra; Arlington Heights v. Metropolitan Housing Dev. Corp., supra; Washington v. Davis,supra; Keyes v. School Dist. No. 1, Denver, Colo., supra. And, in construing § 703(a)(1) of Title VII, which, at its core, prohibits an employer from "treat[ing] some people less favorably than others because of their race, color, religion, sex, or national origin," Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 1854, n. 15, 52 L.Ed.2d 396, we have held that "[p]roof of discriminatory motive is critical," ibid. Accord, Furnco Construction Corp. v. Waters, 438 U.S. 567, 579-580, 98 S.Ct. 2943, 2950-2951, 57 L.Ed.2d 957; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, n. 18, 93 S.Ct. 1817, 1825, n. 18, 36 L.Ed.2d 668.10 78 If the term "discrimination" in § 706(d)(1)(B) was in fact intended to mean something other than what it means under Title VI and § 703(a)(1) of Title VII, Congress could have been expected to state the difference in explicit terms. Since there is no such expression of congressional intent, it follows that the meaning of the term "discrimination" under § 706(d)(1)(B) should be no different from its established meaning under Title VI and § 703(a)(1) of Title VII.11 79 For all these reasons, I respectfully dissent. 1 The Act was technically repealed and simultaneously re-enacted, with amendments not material here, by Title VI of the Education Amendments of 1978, Pub.L. 95-561, 92 Stat. 2252, 2268, effective Sept. 30, 1979. The re-enactment is recodified as 20 U.S.C. §§ 3191-3207 (1976 ed., Supp. II). Because they govern this case and have been used throughout the litigation, the statutory references herein are to the 1972 Act, as amended, and to the old Code sections. 2 A school district found to be ineligible may apply for a waiver of its ineligibility. §§ 706(d)(1), (2), and (3). The statute's waiver provision authorizes the Secretary of the Department of Health, Education, and Welfare to permit funding of an otherwise ineligible applicant, if the applicant specifies the reason for its ineligibility and submits "such information and assurances as the Secretary shall require by regulation in order to insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur and include[s] such provisions as are necessary to insure that such activities do not reoccur after the submission of the application." The waiver provision is not involved in this case. In a subsequent proceeding provoked by the Secretary's denial of a waiver to petitioner Board for the fiscal year 1978-1979, the Court of Appeals for the Second Circuit upheld the decision of the District Court to remand the case to HEW for reconsideration. Board of Education of the City of New York v. Harris, 622 F.2d 599 (1979). See Brief for Petitioners 21, n. *; Brief for Respondents 2, n. 2. 3 "No application for assistance . . . shall be approved prior to a determination by the Secretary that the applicant is not ineligible by reason of this subsection." § 706(d)(4). 4 Although the litigation was instituted by petitioner Board (and its Chancellor) and by a number of Community School Districts, only the Board's request for funds remains contested. See Brief for Petitioners 8, n. **; Brief for Respondents 3, n. 3; Reply Brief for Petitioners 3, n. *. 5 There is a definite exception to this pattern in § 706(d)(1)(D). This is conceded by HEW. Brief for Respondents 16. In subsection (D) the statute speaks of any practice "such as limiting curricular or extracurricular activities (or participation therein by children) in order to avoid the participation of minority group children in such activities." This, clearly, is language of intent and motive. But in this context a mere effect test would be out of place and mischievous, for it would automatically condemn every administrative decision not to offer a particular course or program, however, benign or however dictated by budgetary exigencies. 6 The authors of the Report, of course, were aware of massive firings of black teachers in the South. S.Rep.No. 92-61, at 18. 7 "The Stennis amendment would provide that there be a national school policy applied equally to all States, localities, regions, and sections of the United States. The adoption of this amendment would help to eliminate the use of the 'double standard,' which has resulted in the requirements for the integration of the public schools being given a very stringent application in the South and a very lenient application elsewhere. * * * * * "I have never been able to understand how a 10-year-old colored student in a public school in Harlem, Watts, or South Chicago, is expected to look around and see nothing but black faces in his classroom and say to himself: 'This kind of racial separation does not hurt me because the State of Illinois does not have a law requiring me to attend all-black schools. I should not feel hurt by this racial separation because it is the result of housing patterns that just accidentally developed.' " 117 Cong.Rec. 11511-11512 (1971) (remarks of Sen. Eastland). See also id., at 11508-11510 (remarks of Sen. Stennis). 8 "What worries me is this: It could be argued, if this became law, that the Attorney General and the Secretary of Health, Education, and Welfare could be told, 'Do not seek a remedy against an instance where there is official discrimination unless you can also tell me how you can uniformly find the same kind of remedy available to eliminate segregation which does not have an official basis.' "The way it reads, I believe that argument might be made. * * * * * "I fear this amendment could be construed as an endorsement of weakened enforcement throughout this Nation. The reason why I oppose it . . . is that I fear it will be read as a policy statement calling for a national policy of nonenforcement." Id., at 11517-11518 (remarks of Sen. Mondale). See also id., at 11516-11517 (remarks of Sen. Javits). 9 "That is what the conferees have done and that language speaks for itself. For the first time, if this conference report is adopted and the bill is signed into law, we will have a uniform national policy in school desegregation matters, North, South, East, and West applied uniformly without regard to the origin or cause of such segregation. That is the Stennis amendment, pure and simple." 118 Cong.Rec. 18844 (1972). 10 The dissent suggests that no support for an impact standard is provided by the Stennis Amendment, since that Amendment also applies to Title VI, and Title VI does not incorporate an impact test. The Stennis Amendment, as enacted, however, was broken into two subsections, with subsection 703(a) applying to guidelines and criteria under ESAA, and subsection 703(b) applying to guidelines and criteria under Title VI. The Conference Report on this section explained the distinction: "The House amendment stated the policy of the United States that guidelines and criteria established pursuant to this title shall be applied uniformly in all regions of the United States in dealing with conditions of segregation by race in the schools of the local educational agencies of any State without regard to the origin or cause of such segregation. The Senate amendment stated the policy of the United States that guidelines and criteria established pursuant to Title VI of the Civil Rights Act . . . and this title shall be applied uniformly in all regions of the United States in dealing with conditions of segregation by race whether de jure or de facto in the schools of the local educational agencies of any State without regard to the origin or cause of such segregation. The conference substitute retains both the Senate and House provisions but deletes the reference in the Senate amendment to this title. The conference substitute's version of the Senate provision, therefore, restates the policy contained in section 2(a) of Pub.L. 91-230 and in no way supersedes subsection (b) of such section." S.Conf.Rep.No. 92-798, pp. 212-213 (1972), U.S.Code Cong. & Admin.News 1972, pp. 2462, 2663. (Emphasis added.) It is clear from this explanation that the House version became § 703(a), and the Senate version became § 703(b). The explanation that the conference version of the Senate provision does not supersede § 2(b) of Pub.L. 91-230 is critical. Section 2 of Pub.L. 91-230, 84 Stat. 121, 42 U.S.C. § 2000d-6, provides in relevant part: "(a) It is the policy of the United States that guidelines and criteria established pursuant to title VI of the Civil Rights Act of 1964 . . . dealing with conditions of segregation by race, whether de jure or de facto, in the schools of the local educational agencies of any State shall be applied uniformly in all regions of the United States whatever the origin or cause of such segregation. "(b) Such uniformity refers to one policy applied uniformly to de jure segregation wherever found and such other policy as may be provided pursuant to law applied uniformly to de facto segregation wherever found." (Emphasis added.) Thus, the version of the Stennis Amendment which applies under Title VI, as explained by § 2(b) of Pub.L. 91-230, is significantly different from the ESAA version of the Stennis Amendment. In view of this difference, it is not at all "wholly incongruous to hold in this case that the Stennis Amendment supports a mere 'disparate impact' reading of the term 'discrimination' in § 706(d)(1)(B) of ESAA, when only two Terms ago five Members of the Court construed the prohibition against 'discrimination' in federally funded programs under Title VI, which is equally subject to the Stennis Amendment, to incorporate a purposeful-discrimination test," as the dissent asserts, post, at 160. Programs funded under Title VI are not "equally" subject to the Stennis Amendment; they are subject to a different version of the Stennis Amendment. 11 Petitioner Board acknowledges that for funding purposes, the distinction between de jure and de facto segregation was "erased" in ESAA. Brief for Petitioners 23, 32. But it would tie this erasure only to the eligibility standards of § 706(a)(1) (court-ordered, HEW-approved, or voluntary plan of desegregation) and not to the ineligibility criteria of § 706(d). We do not so limit or circumscribe the statute. Section 703(a) applies to all "guidelines and criteria." 12 "In an attempt to deal with this problem, the Committee bill adopts an amendment making clear that school districts which are undertaking efforts to integrate their faculty but which have not yet fully achieved that goal may nonetheless obtain a waiver of ineligibility. Presently, the Department of Health, Education, and Welfare is interpreting the law as requiring school districts to complete faculty integration before they can apply for funds. The purpose of this amendment is to assist those school districts while they are trying to achieve that goal." 13 We find the reasoning of the District Court in Robinson v. Vollert, 411 F.Supp. 461, 472-475 (SD Tex.1976), rev'd, 602 F.2d 87 (CA5 1979), upon which the Board also relies, clearly distinguishable. This case concerned an attempt by HEW to impose conditions upon the receipt of ESAA funds different from those imposed by a court overseeing court-ordered desegregation. A court-ordered plan is deemed sufficient under Title VI. Elementary and Secondary Education Amendments of 1967, § 112, 81 Stat. 787, 42 U.S.C. § 2000d-5. The court in Vollert reasoned that a court-ordered plan also should be deemed in compliance with ESAA. While we do not pass upon the issue, it may be that what constitutes acceptable integration is the same under both Title VI and ESAA, and that HEW may not require a remedy different from that imposed by a court. Even so, that would not mean that what constitutes discrimination is the same under both statutes. ESAA was an attempt by Congress to bring about the same remedy without regard to the cause of the problem, while Title VI may have been intended to remedy the problem only when its cause was intentional discrimination. 1 20 U.S.C. §§ 1601-1619. In 1978, Congress re-enacted ESAA with amendments not material here and recodified the statute at 20 U.S.C. §§ 3191-3207 (1976 ed., Supp. II). See Education Amendments of 1978, Title VI, 92 Stat. 2252, 2268. The provision at issue here, former § 706(d)(1)(B), is now codified at 20 U.S.C. § 3196(c)(1)(B) (1976 ed., Supp. II). In the interest of consistency with the Court's opinion, all statutory references herein are to the original statutory and Code provisions. 2 The petitioners also argue that the doctrine of ejusdem generis is not appropriately applied in this context inasmuch as the word "otherwise" is not preceded by an enumeration of a number of types of conduct, but rather by a single type of highly particularized conduct. See 2A C. Sands, Statutes and Statutory Construction § 47.17 (4th ed. 1973). In this context, the petitioners argue that the word "otherwise" conveys a sense not of similarity, but of contrast: the section first describes, without regard to motive or intent, disproportionate demotions or dismissals; then, in apparent contrast to the first type of conduct, it describes "discrimination" in the hiring, promotion, or assignment of staff. 3 The respondents also rely on the "general scheme" of ESAA for its reading of the second clause of § 706(d)(1)(B) as incorporating no more than a disparate-impact ineligibility standard. This reliance is misplaced. Although one of the concerns of Congress in enacting ESAA was to eliminate minority isolation regardless of its cause, Congress also had in mind other important objectives in enacting the legislation. One such objective was to meet the special educational needs of minority group children from environments in which the dominant language is other than English. See S.Rep.No.92-61, pp. 22-24 (1971). To attain this objective, Congress earmarked certain ESAA funds for programs to assist these children in developing linguistic skills in both English and the language they speak at home. § 708(c) of ESAA, 20 U.S.C. § 1607(c). The respondents' construction of § 706(d)(1)(B), if literally applied, could wholly frustrate this congressional purpose by making ineligible for ESAA funds those school districts whose faculty assignment policies have caused racial disparities resulting from bona fide efforts to meet the special educational needs of non-English-speaking children. In a situation where, for example, a school district is making special efforts to provide bilingual instruction to Spanish-speaking children, it would be hardly surprising to find a disproportionate number of Hispanic teachers assigned to schools serving Hispanic students. Yet, if the disparate-impact test were literally applied, this bona fide attempt to advance the goals of ESAA would render the school district ineligible for further ESAA funding. It can hardly be said, therefore, that the overall purposes of ESAA unerringly point to the respondents' reading of the second clause of § 706(d)(1)(B). 4 Yet another problem with the Court's conclusion that the second clause of § 706(d)(1)(B) creates a rebuttable disparate-impact standard is the fact that the Court never explains its later suggestion that an applicant may rebut a prima facie showing of discrimination only by proof of error in the statistics or by an " 'educational necessity' [showing], analogous to the 'business necessity' justification applied under Title VII of the Civil Rights Act of 1964." Ante, at 151. By referring to the "business necessity" justification under Title VII, the Court apparently is construing the term "discrimination" in § 706(d)(1)(B) by reference to those cases under Title VII which have not required a showing of discriminatory intent on the part of the employer, e. g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. Under the doctrine of those cases, a Title VII violation may be found if the plaintiff demonstrates that an employment practice has a disparate racial impact and the employer is then unable to justify the practice on the grounds of "business necessity." Id., at 431-432, 91 S.Ct., at 853-854. By analogy to this type of employment discrimination, the Court apparently concludes that the second clause of § 706(d)(1)(B) renders ineligible any school district whose faculty assignment policies have a disparate racial impact not justified by educational needs. It is my view, however, that this category of Title VII cases has no bearing on the meaning of the term "discrimination" in the second clause of § 706(d)(1)(B). Our cases make clear that the theory of "disparate impact" under Title VII is a gloss on the specific statutory language of §§ 703(a)(2) and 703(h) of Title VII, see General Electric Co. v. Gilbert, 429 U.S. 125, 137, 97 S.Ct. 401, 408, 50 L.Ed.2d 343; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, n. 21, 95 S.Ct. 2362, 2375, n. 21, 45 L.Ed.2d 280; Griggs v. Duke Power Co., supra, 401 U.S., at 426, n. 1, 91 S.Ct., at 851, n. 1. Under § 703(a)(2), it is an unlawful employment practice for an employer "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(2). Section 703(h) provides that it is not unlawful for an employer "to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin," 42 U.S.C. § 2000e-2(h). The language of these provisions quite plainly does not track that in § 706(d)(1)(B), for § 703(a)(2) fails even to include the term "discrimination," and while the term does appear in § 703(h) it is expressly modified—"used to discriminate"—in such a manner as to incorporate a disparate-impact test. Since the language of §§ 703(a)(2) and 703(h) of Title VII in no way resembles that at issue here, those provisions are obviously not an appropriate guide to the definition of "discrimination" under § 706(d)(1)(B). If there is an appropriate analogy to Title VII, it is a quite different one. See Part III of this opinion. 5 The Court also finds support for its reading of § 706(d)(1)(B) in the fact that at least two of the three other ineligibility provisions in § 706(d)(1) do not require a showing of intent. Accordingly, the Court notes that "an effect test is the Act's rule, not its exception." Ante, at 142. Even putting aside doubts as to the validity of the premise of this argument (namely, that a statutory provision should be construed in accordance with the majority of arguably related provisions), the Court's tally of these other provisions is extremely questionable. In short, it seems clear that the ineligibility standard of § 706(d)(1)(A) does not, as the Court suggests, amount to an "effect" test. That provision by its own terms rather plainly requires at least a showing of negligence before a school district is rendered ineligible for ESAA funding. 6 In response, the Court argues that Congress enacted two different versions of the Stennis Amendment. Ante, at 146-147, n. 10. This argument is premised on the fact that the Conference Report indicated that § 703(b), the section of the Stennis Amendment applicable to Title VI, was intended to restate and not to supersede a provision in Title VI, 42 U.S.C. § 2000d-6, which provides: "(a) It is the policy of the United States that guidelines and criteria established pursuant to Title VI of the Civil Rights Act of 1964 . . . dealing with conditions of segregation by race, whether de jure or de facto, in the schools of the local educational agencies of any State shall be applied uniformly in all regions of the United States whatever the origin or cause of such segregation. "(b) Such uniformity refers to one policy applied uniformly to de jure segregation wherever found and such other policy as may be provided pursuant to law applied uniformly to de facto segregation wherever found." (Emphasis added.) The flaw in this argument is that the Conference Committee in no way indicated, as the Court seems to suggest, that § 703(a), the section of the Stennis Amendment applicable to ESAA, was to be construed any differently than § 703(b). 7 42 U.S.C. § 2000d (emphasis added). 8 42 U.S.C. § 2000e-2(a)(1) (emphasis added). 9 There may be a difference between the standard of Title VI and that of § 703(a)(1) of Title VII. But it is clear that a finding of discrimination under either provision ultimately depends upon a finding of either discriminatory motive of discriminatory intent. 10 Because direct proof of an illicit motive is often unavailable, the cases under § 703(a)(1) have established a procedural mechanism under which an employer, once an employee has adduced sufficient evidence to give rise to an inference of a discriminatory motive, must bear the burden of establishing that he acted for "a legitimate, non-discriminatory reason." If the employer meets that burden, then the employee must show that the proffered explanation is in fact a pretext. Furnco Construction Corp. v. Waters, 438 U.S., at 575-577, 98 S.Ct., at 2948-2949; Teamsters v. United States, 431 U.S., at 357-360, 97 S.Ct., at 1865-1867; McDonnell Douglas Corp. v. Green, 411 U.S., at 800-805, 93 S.Ct., at 1823-1826. This procedural mechanism is simply designed to provide a means of inferring an employer's motive in the absence of direct evidence. See Furnco Construction Corp. v. Waters, supra. 11 The Court finds support for its interpretation of § 706(d)(1)(B) in the fact that Congress, though aware that HEW had construed the section to incorporate a disparate-impact test, re-enacted it without change in 1978. Ante, at 148-149. This inaction by Congress, in the Court's view, "strongly suggests that Congress acquiesced in HEW's interpretation of the statute." Ante, at 149. This argument might have force if the Court today construed § 706(d)(1)(B) the way HEW interpreted it in 1978. But the Court has not done so. The HEW regulation implementing § 706(d)(1)(B) provides, as it did in 1978, that: "No educational agency shall be eligible for assistance under the Act if, after June 23, 1972, it has had or maintained in effect any other practice, policy, or procedure which results in discrimination on the basis of race, color, or national origin in the recruiting, hiring, promotion, payment, demotion, dismissal, or assignment of any of its employees . . ., including the assignment of full-time classroom teachers to the schools of such agency in such a manner as to identify any of such schools as intended for students of a particular race, color, or national origin." 45 CFR § 185.43(b)(2). By lumping together "demotions and dismissals," on the one hand, with employee "assignments," on the other, the HEW regulation rather clearly equates the ineligibility standard of the second clause of § 706(d)(1)(B) with the irrebuttable disparate-impact standard of the first clause. By contrast, the Court says that the ineligibility standards under the two clauses substantially differ. Ante, at 143-144. Since the Court departs from HEW's 1978 interpretation of § 706(d)(1)(B), it is hard to see how the failure of Congress to overturn that interpretation lends support to the Court's different construction of the section in its opinion today.

12

444 U.S. 206 100 S.Ct. 399 62 L.Ed.2d 365 Norman VAUGHN, Freddie Broussard and Larry J. Broussard, Petitioners,v.VERMILION CORPORATION. No. 77-1819. Dec. 4, 1979. John K. Hill, Jr., Lafayette, La., for petitioners. Harry McCall, Jr., New Orleans, La., for respondent. PER CURIAM. 1 The legal principles stated today in our opinion in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332, control the disposition of this case. Because of its posture here, however, we find it necessary to remand the case to the Court of Appeal of Louisiana. We think a brief statement of the facts and proceedings below will be helpful to an understanding of our disposition. 2 Respondent Vermilion Corp. leases a substantial amount of acreage, owned by Exxon Co., in the State of Louisiana. The land is traversed by a system of manmade canals, which are approximately 60 feet wide and 8 feet deep. The canals are both subject to tidal fluctuations and navigable in fact. They were constructed with private funds, and have been continuously in the control and possession of respondent Vermilion Corp., Exxon, and their predecessors, for a long period of time. 3 The canal system enters other naturally navigable waterways, and lies between the Gulf Intracoastal Waterway on the north and the Gulf of Mexico on the south. The canals are used for fishing and hunting and are also used by Exxon for oil and gas exploration and development activities. Respondent Vermilion subleases portions of the Exxon land to hunters, trappers, and fishers, and the right to use the canals is a part of the sublease agreement. 4 In order to control access to the land and the canals, over 400 "No Trespassing" signs are posted in various locations. Respondent Vermilion Corp. employs people to supervise activities in the canals and on the land, and on numerous occasions such people have prohibited strangers from entering and using the property in question. 5 The present controversy arises out of petitioners' insistence that notwithstanding Vermilion's property rights, they were entitled as a matter of federal law—without obtaining respondent's permission—to enter the property, travel the canals, and engage in commercial fishing and shrimping activities. Petitioners disregarded several written warnings issued by respondent; respondent then filed suit in the Louisiana state court seeking permanent injunctions against petitioners from trespassing on the land and making use of the canals.* 6 After commencement of the litigation, respondent moved for summary judgment, based on affidavits and a deposition, pursuant to the appropriate article of the Louisiana Code of Civil Procedure. The trial court granted the motion and petitioners appealed to the Louisiana Court of Appeal. That court affirmed. 356 So.2d 551. The petition for certiorari here sets forth two questions for review. Pet. for Cert. 5. The first is if a private citizen on his privately held real property and with private funds creates a system of artificial navigable waterways, in part by means of diversion or destruction of a pre-existing natural navigable waterway, does the artificially developed waterway system become part of the "navigable waterways of the United States" and subject to the use of all citizens of the United States? The second is whether channels built on private property and with private funds, in such a manner that they ultimately join with other navigable waterways, are similarly open to use by all citizens of the United States. The difference between the two questions is obvious: The first posits the diversion or destruction of a pre-existing natural navigable waterway in the process of construction of the private waterway, whereas the second does not. We think that our opinion in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332, adequately answers the second question presented for review and that the Louisiana Court of Appeal was correct in determining that on such facts no general right of use in the public arose by reason of the authority over navigation conferred upon Congress by the Commerce Clause of Art. I of the United States Constitution. But the Louisiana Court of Appeal also held that even though the destruction or diversion of naturally navigable waterways occurred in the process of constructing the private waterways, the result would be no different. In so doing, the Court of Appeal relied on Ilhenny v. Broussard, 172 La. 895, 135 So. 669 (1931), a decision of the Supreme Court of Louisiana. The Court of Appeal, in the light of this decision, held that a factual dispute between the litigants in this case was immaterial, and that summary judgment was proper as a matter of law. That factual dispute is summarized by the Louisiana Court of Appeal in these words: 7 "Defendants contend, however, that there is a fact in dispute which is genuinely material to this litigation and that summary judgment was improper. They claim that plaintiff's system of artificial waterways destroyed the navigability of surrounding natural waterways. They argue that this is material because, if true, the court could conclude that the system of artificial waterways was substituted for the pre-existing natural system of navigable waterways. If such a conclusion were reached, the canals would not be private and could not be privately controlled under state and federal law." 356 So.2d, at 553. 8 While neither our opinion in Kaiser Aetna v. United States nor any of the principal cases relied on there deal with this specific fact situation, we do not think it can be said as a matter of law that if petitioners proved their factual allegations that proof would not constitute a defense under federal law to respondent's prayer for injunctive relief in the trial court. 9 Accordingly, the judgment of the Louisiana Court of Appeal is affirmed with respect to the second question presented in the petition for certiorari, and vacated and remanded for further proceedings not inconsistent with our opinion in Kaiser Aetna v. United States, decided today, with respect to the first question. 10 It is so ordered. 11 Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 12 Since the canals involved in this case are entirely artificial in their construction, applicability of the federal navigational servitude is a somewhat closer question than in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332. Nevertheless, for the reasons given in my dissenting opinion in that case, at 180, 100 S.Ct., at 393, I would reverse the judgment of the Louisiana Court of Appeal. 13 There is no question that the canals are navigable in fact, or that they give access to the Gulf Intracoastal Waterway, a waterway used for interstate navigation and subject to plenary federal control. The canals are currently used for commercial navigation. They are thus, "navigable waters of the United States." 14 If the United States had condemned respondent's fast land in order to construct the canals, I would agree that compensation would be required, although the valuation of the land could not include its potential use as a canal. Cf. United States v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). But the Government did not initiate the construction. Rather, respondent's predecessors in interest voluntarily undertook to transform land into navigable water for purposes of obtaining access to a highway of waterborne commerce. In doing so, they subjected their former fast land to the dominant federal interest in navigation and surrendered the right to control access to the canals. 15 As in Kaiser Aetna, I would hold that the public interest in free navigation predominates, and that, if restrictions on access are warranted, they should be accomplished through the auspices of the Army Corps of Engineers. While I agree with the Court that it would be inappropriate on this record to decide the first question presented for review, my answer to the second question obviates the necessity of reaching the first. I thus perceive no need to remand the case for further proceedings. * The Louisiana Court of Appeal, Third Circuit, which was the only Louisiana appellate court to render a written opinion on the question, stated in that opinion that no proof of damages was introduced in the trial court, although they had been prayed for in the complaint, and that no question of damages was raised on the appeal from the trial court to the appellate court.

34

444 U.S. 164 100 S.Ct. 383 62 L.Ed.2d 332 KAISER AETNA et al., Petitioners,v.UNITED STATES. No. 78-738. Argued Oct. 1, 1979. Decided Dec. 4, 1979. Syllabus Through dredging and filling operations in developing a marina-style subdivision community, petitioners, the owner and lessee of an area which included Kuapa Pond, a shallow lagoon on the island of Oahu, Hawaii, that was contiguous to a navigable bay and the Pacific Ocean but separated from the bay by a barrier beach, converted the pond into a marina and thereby connected it to the bay. The Army Corps of Engineers had advised petitioners that they were not required to obtain permits for the development of and operations in the pond, and petitioners ultimately made improvements that allowed boats access to and from the bay. Petitioner lessee controls access to and use of the pond, which, under Hawaii law, was private property, and fees are charged for maintaining the pond. Thereafter, the United States filed suit in Federal District Court against petitioners to resolve a dispute as to whether petitioners were required to obtain the Corps' authorization, in accordance with § 10 of the Rivers and Harbors Appropriation Act of 1899, for future improvements in the marina, and whether petitioners could deny the public access to the pond because, as a result of the improvements, it had become a navigable water of the United States. In examining the scope of Congress' regulatory authority under the Commerce Clause, the District Court held that the pond was "navigable water of the United States," subject to regulation by the Corps, but further held that the Government lacked authority to open the pond to the public without payment of compensation to the owner. The Court of Appeals agreed that the pond fell within the scope of Congress' regulatory authority, but held, reversing the District Court, that when petitioners converted the pond into a marina and thereby connected it to the bay, it became subject to the "navigational servitude" of the Federal Government, thus giving the public a right of access to what was once petitioners' private pond. Held: If the Government wishes to make what was formerly Kuapa Pond into a public aquatic park after petitioners have proceeded as far as they have here, it may not, without invoking its eminent domain power and paying just compensation, require them to allow the public free access to the dredged pond. Although the dredged pond falls within the definition of "navigable waters" as this Court has used that term in delimiting the boundaries of Congress' regulatory authority under the Commerce Clause, this Court has never held that the federal navigational servitude creates a blanket exception to the Takings Clause of the Fifth Amendment whenever Congress exercises its Commerce Clause authority to promote navigation. Congress, in light of its extensive Commerce Clause authority over this Nation's waters, which does not depend on a stream's "navigability," may prescribe rules governing petitioners' marina and may assure the public a free right of access to the marina if it so chooses, but whether a statute or regulation that goes so far amounts to a "taking" is an entirely separate question. Here the Government's attempt to create a public right of access to the improved pond goes so far beyond ordinary regulation or improvement for navigation involved in typical riparian condemnation cases as to amount to a taking requiring just compensation. Cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322. Pp. 170-180. 584 F.2d 378, reversed. Richard Charles Bocken, Honolulu, Hawaii, for petitioners. Kathryn A. Oberly, Washington, D. C., for respondent. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 The Hawaii Kai Marina was developed by the dredging and filling of Kuapa Pond, which was a shallow lagoon separated from Maunalua Bay and the Pacific Ocean by a barrier beach. Although under Hawaii law Kuapa Pond was private property, the Court of Appeals for the Ninth Circuit held that when petitioners converted the pond into a marina and thereby connected it to the bay, it became subject to the "navigational servitude" of the Federal Government. Thus, the public acquired a right of access to what was once petitioners' private pond. We granted certiorari because of the importance of the issue and a conflict concerning the scope and nature of the servitude.1 440 U.S. 906, 99 S.Ct. 1211, 59 L.Ed.2d 453 (1979). 2 * Kuapa Pond was apparently created in the late Pleistocene Period, near the end of the ice age, when the rising sea level caused the shoreline to retreat, and partial erosion of the headlands adjacent to the bay formed sediment that accreted to form a barrier beach at the mouth of the pond, creating a lagoon. It covered 523 acres on the island of Oahu, Hawaii, and extended approximately two miles inland from Maunalua Bay and the Pacific Ocean. The pond was contiguous to the bay, which is a navigable waterway of the United States, but was separated from it by the barrier beach. 3 Early Hawaiians used the lagoon as a fishpond and reinforced the natural sandbar with stone walls. Prior to the annexation of Hawaii, there were two openings from the pond to Maunalua Bay. The fishpond's managers placed removable sluice gates in the stone walls across these openings. Water from the bay and ocean entered the pond through the gates during high tide, and during low tide the current flow reversed toward the ocean. The Hawaiians used the tidal action to raise and catch fish such as mullet. 4 Kuapa Pond, and other Hawaiian fishponds, have always been considered to be private property by landowners and by the Hawaiian government. Such ponds were once an integral part of the Hawaiian feudal system. And in 1848 they were allotted as parts of large land units, known as "ahupuaas," by King Kamehameha III during the Great Mahele or royal land division. Titles to the fishponds were recognized to the same extent and in the same manner as rights in more orthodox fast land. Kuapa Pond was part of an ahupuaa that eventually vested in Bernice Pauahi Bishop and on her death formed a part of the trust corpus of petitioner Bishop Estate, the present owner. 5 In 1961, Bishop Estate leased a 6,000-acre area, which included Kuapa Pond, to petitioner Kaiser Aetna for subdivision development. The development is now known as "Hawaii Kai." Kaiser Aetna dredged and filled parts of Kuapa Pond, erected retaining walls and built bridges within the development to create the Hawaii Kai Marina. Kaiser Aetna increased the average depth of the channel from two to six feet. It also created accommodations for pleasure boats and eliminated the sluice gates. 6 When petitioners notified the Army Corps of Engineers of their plans in 1961, the Corps advised them they were not required to obtain permits for the development of and operations in Kuapa Pond. Kaiser Aetna subsequently informed the Corps that it planned to dredge an 8-foot-deep channel connecting Kuapa Pond to Maunalua Bay and the Pacific Ocean, and to increase the clearance of a bridge of the Kalanianaole Highway—which had been constructed during the early 1900's along the barrier beach separating Kuapa Pond from the bay and ocean—to a maximum of 13.5 feet over the mean sea level. These improvements were made in order to allow boats from the marina to enter into and return from the bay, as well as to provide better waters. The Corps acquiesced in the proposals, its chief of construction commenting only that the "deepening of the channel may cause erosion of the beach." 7 At the time of trial, a marina-style community of approximately 22,000 persons surrounded Kuapa Pond. It included approximately 1,500 marina waterfront lot lessees. The waterfront lot lessees, along with at least 86 nonmarina lot lessees from Hawaii Kai and 56 boat owners who are not residents of Hawaii Kai, pay fees for maintenance of the pond and for patrol boats that remove floating debris, enforce boating regulations, and maintain the privacy and security of the pond. Kaiser Aetna controls access to and use of the marina. It has generally not permitted commercial use, except for a small vessel, the Marina Queen, which could carry 25 passengers and was used for about five years to promote sales of marina lots and for a brief period by marina shopping center merchants to attract people to their shopping facilities. 8 In 1972, a dispute arose between petitioners and the Corps concerning whether (1) petitioners were required to obtain authorization from the Corps, in accordance with § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403,2 for future construction, excavation, or filling in the marina, and (2) petitioners were precluded from denying the public access to the pond because, as a result of the improvements, it had become a navigable water of the United States. The dispute foreseeably ripened into a lawsuit by the United States Government against petitioners in the United States District Court for the District of Hawaii. In examining the scope of Congress' regulatory authority under the Commerce Clause, the District Court held that the pond was "navigable water of the United States" and thus subject to regulation by the Corps under § 10 of the Rivers and Harbors Appropriation Act. 408 F.Supp. 42, 53 (D.Haw.1976). It further held, however, that the Government lacked the authority to open the now dredged pond to the public without payment of compensation to the owner. Id., at 54. In reaching this holding, the District Court reasoned that although the pond was navigable for the purpose of delimiting Congress' regulatory power, it was not navigable for the purpose of defining the scope of the federal "navigational servitude" imposed by the Commerce Clause. Ibid. Thus, the District Court denied the Corps' request for an injunction to require petitioners to allow public access and to notify the public of the fact of the pond's accessibility. 9 The Court of Appeals agreed with the District Court's conclusion that the pond fell within the scope of Congress' regulatory authority, but reversed the District Court's holding that the navigational servitude did not require petitioners to grant the public access to the pond. 584 F.2d 378 (1978). The Court of Appeals reasoned that the "federal regulatory authority over navigable waters . . . and the right of public use cannot consistently be separated. It is the public right of navigational use that renders regulatory control necessary in the public interest." Id., at 383. The question before us is whether the Court of Appeals erred in holding that petitioners' improvements to Kuapa Pond caused its original character to be so altered that it became subject to an overriding federal navigational servitude, thus converting into a public aquatic park that which petitioners had invested millions of dollars in improving on the assumption that it was a privately owned pond leased to Kaiser Aetna.3 II 10 The Government contends that petitioners may not exclude members of the public from the Hawaii Kai Marina because "[t]he public enjoys a federally protected right of navigation over the navigable waters of the United States." Brief for United States 13. It claims the issue in dispute is whether Kuapa Pond is presently a "navigable water of the United States." Ibid. When petitioners dredged and improved Kuapa Pond, the Government continues, the pond—although it may once have qualified as fast land—became navigable water of the United States.4 The public thereby acquired a right to use Kuapa Pond as a continuous highway for navigation, and the Corps of Engineers may consequently obtain an injunction to prevent petitioners from attempting to reserve the waterway to themselves. 11 The position advanced by the Government, and adopted by the Court of Appeals below, presumes that the concept of "navigable waters of the United States" has a fixed meaning that remains unchanged in whatever context it is being applied. While we do not fully agree with the reasoning of the District Court, we do agree with its conclusion that all of this Court's cases dealing with the authority of Congress to regulate navigation and the so-called "navigational servitude" cannot simply be lumped into one basket. 408 F.Supp., at 48-49. As the District Court aptly stated, "any reliance upon judicial precedent must be predicated upon careful appraisal of the purpose for which the concept of 'navigability' was invoked in a particular case." Id., at 49.5 12 It is true that Kuapa Pond may fit within definitions of "navigability" articulated in past decisions of this Court. But it must be recognized that the concept of navigability in these decisions was used for purposes other than to delimit the boundaries of the navigational servitude: for example, to define the scope of Congress' regulatory authority under the Interstate Commerce Clause, see, e. g., United States v. Appalachian Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940); South Carolina v. Georgia, 93 U.S. 4, 23 L.Ed. 782 (1876); The Montello, 20 Wall. 430, 22 L.Ed. 391 (1874); The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871), to determine the extent of the authority of the Corps of Engineers under the Rivers and Harbors Appropriation Act of 1899,6 and to establish the limits of the jurisdiction of federal courts conferred by Art. III, § 2, of the United States Constitution over admiralty and maritime cases.7 Although the Government is clearly correct in maintaining that the now dredged Kuapa Pond falls within the definition of "navigable waters" as this Court has used that term in delimiting the boundaries of Congress' regulatory authority under the Commerce Clause, see, e. g., The Daniel Ball, supra, 10 Wall., at 563; The Montello, supra, 20 Wall., at 441-442; United States v. Appalachian Power Co., supra, 311 U.S., at 407-408, 61 S.Ct., at 299-300, this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation. Thus, while Kuapa Pond may be subject to regulation by the Corps of Engineers, acting under the authority delegated it by Congress in the Rivers and Harbors Appropriation Act, it does not follow that the pond is also subject to a public right of access. 13 Reference to the navigability of a waterway adds little if anything to the breadth of Congress' regulatory power over interstate commerce. It has long been settled that Congress has extensive authority over this Nation's waters under the Commerce Clause. Early in our history this Court held that the power to regulate commerce necessarily includes power over navigation. Gibbons v. Ogden, 9 Wheat. 1, 189, 6 L.Ed. 23 (1824). As stated in Gilman v. Philadelphia, 3 Wall. 713, 724-725, 18 L.Ed. 96 (1866): 14 "Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress." 15 The pervasive nature of Congress' regulatory authority over national waters was more fully described in United States v. Appalachian Power Co., supra, 311 U.S., at 426-427, 61 S.Ct., at 308: 16 "[I]t cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. . . . In truth the authority of the United States is the regulation of commerce on its waters. Navigability . . . is but a part of this whole. Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control. . . . [The] authority is as broad as the needs of commerce. . . . The point is that navigable waters are subject to national planning and control in the broad regulation of commerce granted the Federal Government." Appalachian Power Co. indicates that congressional authority over the waters of this Nation does not depend on a stream's "navigability." And, as demonstrated by this Court's decisions in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609 (1941), and Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), a wide spectrum of economic activities "affect" interstate commerce and thus are susceptible of congressional regulation under the Commerce Clause irrespective of whether navigation, or, indeed, water, is involved. The cases that discuss Congress' paramount authority to regulate waters used in interstate commerce are consequently best understood when viewed in terms of more traditional Commerce Clause analysis than by reference to whether the stream in fact is capable of supporting navigation or may be characterized as "navigable water of the United States." With respect to the Hawaii Kai Marina, for example, there is no doubt that Congress may prescribe the rules of the road, define the conditions under which running lights shall be displayed, require the removal of obstructions to navigation, and exercise its authority for such other reason as may seem to it in the interest of furthering navigation or commerce. B 17 In light of its expansive authority under the Commerce Clause, there is no question but that Congress could assure the public a free right of access to the Hawaii Kai Marina if it so chose. Whether a statute or regulation that went so far amounted to a "taking," however, is an entirely separate question.8 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). As was recently pointed out in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), this Court has generally "been unable to develop any 'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons." Id., at 124, 98 S.Ct., at 2659. Rather, it has examined the "taking" question by engaging in essentially ad hoc, factual inquiries that have identified several factors—such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the governmental action—that have particular significance. Ibid. When the "taking" question has involved the exercise of the public right of navigation over interstate waters that constitute highways for commerce, however, this Court has held in many cases that compensation may not be required as a result of the federal navigational servitude. See, e. g., United States v. Chandler-Dunbar Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913). C 18 The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters that in their natural condition are in fact capable of supporting public navigation. See United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917). Thus, in United States v. Chandler-Dunbar Co., supra, 229 U.S., at 69, 33 S.Ct., at 674, this Court stated that "the running water in a great navigable stream is [incapable] of private ownership . . . ." And, in holding that a riparian landowner was not entitled to compensation when the construction of a pier cut off his access to navigable water, this Court observed: 19 "The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is entirely consistent with such use, and infringes no right of the riparian owner. Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation." Scranton v. Wheeler, 179 U.S. 141, 163, 21 S.Ct. 48, 57, 45 L.Ed. 126 (1900). 20 For over a century, a long line of cases decided by this Court involving Government condemnation of "fast lands" delineated the elements of compensable damages that the Government was required to pay because the lands were riparian to navigable streams. The Court was often deeply divided, and the results frequently turned on what could fairly be described as quite narrow distinctions. But this is not a case in which the Government recognizes any obligation whatever to condemn "fast lands" and pay just compensation under the Eminent Domain Clause of the Fifth Amendment to the United States Constitution. It is instead a case in which the owner of what was once a private pond, separated from concededly navigable water by a barrier beach and used for aquatic agriculture, has invested substantial amounts of money in making improvements. The Government contends that as a result of one of these improvements, the pond's connection to the navigable water in a manner approved by the Corps of Engineers, the owner has somehow lost one of the most essential sticks in the bundle of rights that are commonly characterized as property—the right to exclude others. 21 Because the factual situation in this case is so different from typical ones involved in riparian condemnation cases, we see little point in tracing the historical development of that doctrine here. Indeed, since this Court's decision in United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 266, 19 L.Ed.2d 329 (1967), closely following its decisions in United States v. Virginia Electric & Power Co., 365 U.S. 624, 628, 81 S.Ct. 784, 788, 5 L.Ed.2d 838 (1961), and United States v. Twin City Power Co., 350 U.S. 222, 226, 76 S.Ct. 259, 261, 100 L.Ed. 240 (1956), the elements of compensation for which the Government must pay when it condemns fast lands riparian to a navigable stream have remained largely settled. Distinctions between cases such as these, on the one hand, and United States v. Kansas City Life Ins. Co., 339 U.S. 799, 808, 70 S.Ct. 885, 890, 94 L.Ed. 1277 (1950), may seem fine, indeed, in the light of hindsight, but perhaps for the very reason that it is hindsight which we now exercise, the shifting back and forth of the Court in this area until the most recent decisions bears the sound of "Old, unhappy, far-off things, and battles long ago." 22 There is no denying that the strict logic of the more recent cases limiting the Government's liability to pay damages for riparian access, if carried to its ultimate conclusion, might completely swallow up any private claim for "just compensation" under the Fifth Amendment even in a situation as different from the riparian condemnation cases as this one. But, as Mr. Justice Holmes observed in a very different context, the life of the law has not been logic, it has been experience. The navigational servitude, which exists by virtue of the Commerce Clause in navigable streams, gives rise to an authority in the Government to assure that such streams retain their capacity to serve as continuous highways for the purpose of navigation in interstate commerce. Thus, when the Government acquires fast lands to improve navigation, it is not required under the Eminent Domain Clause to compensate landowners for certain elements of damage attributable to riparian location, such as the land's value as a hydroelectric site, Twin City Power Co., supra, or a port site, United States v. Rands, supra. But none of these cases ever doubted that when the Government wished to acquire fast lands, it was required by the Eminent Domain Clause of the Fifth Amendment to condemn and pay fair value for that interest. See United States v. Kansas City Life Ins. Co., supra, 339 U.S., at 800, 70 S.Ct., at 886; United States v. Virginia Electric & Power Co., supra, 365 U.S., at 628, 81 S.Ct., at 788; United States v. Rands, supra, 389 U.S., at 123, 88 S.Ct., at 266. The nature of the navigational servitude when invoked by the Government in condemnation cases is summarized as well as anywhere in United States v. Willow River Co., 324 U.S. 499, 502, 65 S.Ct. 761, 764, 89 L.Ed. 1101 (1945): 23 "It is clear, of course, that a head of water has value and that the Company has an economic interest in keeping the St. Croix at the lower level. But not all economic interests are 'property rights'; only those economic advantages are 'rights' which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion." 24 We think, however, that when the Government makes the naked assertion it does here, that assertion collides with not merely an "economic advantage" but an "economic advantage" that has the law back of it to such an extent that courts may "compel others to forbear from interfering with [it] or to compensate for [its] invasion." United States v. Willow River Co., supra, at 502, 65 S.Ct., at 764. 25 Here, the Government's attempt to create a public right of access to the improved pond goes so far beyond ordinary regulation or improvement for navigation as to amount to a taking under the logic of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). More than one factor contributes to this result.9 It is clear that prior to its improvement, Kuapa Pond was incapable of being used as a continuous highway for the purpose of navigation in interstate commerce. Its maximum depth at high tide was a mere two feet, it was separated from the adjacent bay and ocean by a natural barrier beach, and its principal commercial value was limited to fishing.10 It consequently is not the sort of "great navigable stream" that this Court has previously recognized as being "[incapable] of private ownership." See, e. g., United States v. Chandler-Dunbar Co., 229 U.S., at 69, 33 S.Ct., at 674; United States v. Twin City Power Co., supra, at 228, 76 S.Ct., at 262. And, as previously noted, Kuapa Pond has always been considered to be private property under Hawaiian law. Thus, the interest of petitioners in the now dredged marina is strikingly similar to that of owners of fast land adjacent to navigable water. 26 We have not the slightest doubt that the Government could have refused to allow such dredging on the ground that it would have impaired navigation in the bay, or could have conditioned its approval of the dredging on petitioners' agreement to comply with various measures that it deemed appropriate for the promotion of navigation. But what petitioners now have is a body of water that was private property under Hawaiian law, linked to navigable water by a channel dredged by them with the consent of the Government. While the consent of individual officials representing the United States cannot "estop" the United States, see Montana v. Kennedy, 366 U.S. 308, 314-315, 81 S.Ct. 1336, 1340-1341, 6 L.Ed.2d 313 (1961); INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973), it can lead to the fruition of a number of expectancies embodied in the concept of "property"—expectancies that, if sufficiently important, the Government must condemn and pay for before it takes over the management of the landowner's property. In this case, we hold that the "right to exclude," so universally held to be a fundamental element of the property right,11 falls within this category of interests that the Government cannot take without compensation. This is not a case in which the Government is exercising its regulatory power in a manner that will cause an insubstantial devaluation of petitioners' private property; rather, the imposition of the navigational servitude in this context will result in an actual physical invasion of the privately owned marina. Compare Andrus v. Allard, 444 U.S. 51 at 65-66, 100 S.Ct. 318, at 326-327, 62 L.Ed.2d 210, with the traditional taking of fee interests in United States ex rel. TVA v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943), and in United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943). And even if the Government physically invades only an easement in property, it must nonetheless pay just compensation. SeeUnited States v. Causby, 328 U.S. 256, 265, 66 S.Ct. 1062, 1067, 90 L.Ed. 1206 (1946); Portsmouth Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287 (1922). Thus, if the Government wishes to make what was formerly Kuapa Pond into a public aquatic park after petitioners have proceeded as far as they have here, it may not, without invoking its eminent domain power and paying just compensation, require them to allow free access to the dredged pond while petitioners' agreement with their customers calls for an annual $72 regular fee. 27 Accordingly the judgment of the Court of Appeals is 28 Reversed. 29 Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 30 The Court holds today that, absent compensation, the public may be denied a right of access to "navigable waters of the United States" that have been created or enhanced by private means. I find that conclusion neither supported in precedent nor wise in judicial policy, and I dissent. 31 My disagreement with the Court lies in four areas. First, I believe the Court errs by implicitly rejecting the old and long-established "ebb and flow" test of navigability as a source for the navigational servitude the Government claims. Second, I cannot accept the notion, which I believe to be without foundation in precedent, that the federal "navigational servitude" does not extend to all "navigable waters of the United States." Third, I reach a different balance of interests on the question whether the exercise of the servitude in favor of public access requires compensation to private interests where private efforts are responsible for creating "navigability in fact." And finally, I differ on the bearing that state property law has on the questions before us today. 32 * The first issue, in my view, is whether Kuapa Pond is "navigable water of the United States," and, if so, why. The Court begins by asking "whether . . . petitioners' improvements to Kuapa Pond caused its original character to be so altered that it became subject to an overriding federal navigational servitude." Ante, at 387. It thus assumes that the only basis for extension of federal authority must have arisen after the pond was "developed" and transformed into a marina. This choice of starting point overlooks the Government's contention, advanced throughout this litigation, that Kuapa pond was navigable water in its natural state, long prior to petitioners' improvements, by virtue of its susceptibility to the ebb and flow of the tide.1 33 The Court concedes that precedent does not disclose a single criterion for identifying "navigable waters." I read our prior cases to establish three distinct tests: "navigability in fact," "navigable capacity," and "ebb and flow" of the tide. Navigability in fact has been used as a test for the scope of the dominant federal interest in navigation since The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457, 13 L.Ed. 1058 (1852), and The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999 (1871). The test of navigable capacity is of more recent origin; it hails from United States v. Appalachian Power Co., 311 U.S. 377, 407-408, 61 S.Ct. 291, 299-300, 85 L.Ed. 243 (1940), where it was used to support assertion of the federal navigational interest over a river nonnavigable in its natural state but capable of being rendered fit for navigation by "reasonable improvements." Ebb and flow is the oldest test of the three. It was inherited from England, where under common law it was used to define ownership of navigable waters by the Crown. In the early days of the Republic, it was regarded as the exclusive test of federal jurisdiction over the waterways of this country. See The Thomas Jefferson, 10 Wheat. 428, 429, 6 L.Ed. 358 (1825); Waring v. Clarke, 5 How. 441, 463-464, 12 L.Ed. 226 (1847). 34 Petitioners say that the ebb-and-flow test was abandoned in The Propeller Genesee Chief and The Daniel Ball in favor of navigability in fact. I do not agree with that interpretation. It is based upon language in those opinions suggesting that the test is "arbitrary," that it bears no relation to what is "suitable" for federal control, that it "has no application in this country," and indeed that it is not "any test at all." See The Propeller Genesee Chief v. Fitzhugh, 12 How., at 454; The Daniel Ball, 10 Wall., at 563. One may acknowledge the language without accepting petitioners' inference. The Propeller Genesee Chief and The Daniel Ball were concerned with extending federal power to accommodate the stark realities of fresh-water commerce. In the former the question was whether admiralty jurisdiction included the Great Lakes. In the latter the question was the scope of federal regulatory power over navigation on a river. In either case it is not surprising that the Court, contemplating the substantial interstate fresh-water commerce on our lakes and rivers, found a test developed in England, an island nation with no analogue to our rivers and lakes, unacceptable as a test for the extent of federal power over these inland waterways. Cf. The Propeller Genesee Chief v. Fitzhugh, 12 How., at 454-457. But the inadequacy of the test for defining the interior reach of federal power over navigation does not mean that the test must be, or must have been, abandoned for determining the breadth of federal power on our coasts. 35 The ebb-and-flow test is neither arbitrary nor unsuitable when applied in a coastwise setting. The ebb and flow of the tide define the geographical, chemical, and environmental limits of the three oceans and the Gulf that wash our shores. Since those bodies of water in the main are navigable, they should be treated as navigable to the inner reach of their natural limits. Those natural limits encompass a water body such as Kuapa Pond, which is contiguous to Maunalua Bay, and which in its natural state must be regarded as an arm of the sea, subject to its tides and currents as much as the Bay itself. 36 I take it the Court must concede that, at least for regulatory purposes, the pond in its current condition is "navigable water" because it is now "navigable in fact." See ante, at 167, 169, and 180. I would add that the pond was "navigable water" prior to development of the present marina because it was subject to the ebb and flow of the tide. In view of the importance the Court attaches to the fact of private development,2 this alternative basis for navigability carries significant implications.3 II 37 A more serious parting of ways attends the question whether the navigational servitude extends to all "navigable waters of the United States," however the latter may be established.4 The Court holds that it does not, at least where navigability is in whole or in part the work of private hands. I disagree. 38 The Court notes that the tests of navigability I have set forth originated in cases involving questions of federal regulation rather than application of the navigational servitude. Ante, at 171-173. It also notes that Congress has authority to regulate in aid of navigation far beyond the limitations of "navigability." Ante, at 173-174. From these indisputable propositions the Court concludes that "navigable waters" for these other purposes need not be the same as the "navigable waters" to which the navigational servitude applies. 39 Preliminarily, it must be recognized that the issue is not whether the navigational servitude runs to every watercourse over which the Federal Government may exercise its regulatory power to promote navigation. Regulatory jurisdiction "in aid of" navigation extends beyond the navigational servitude, and indeed beyond navigable water itself. In United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 707-710, 19 S.Ct. 770, 776-777, 43 L.Ed. 1136 (1899), for example, the Court confirmed the Federal Government's power to enjoin an irrigation project above the limits of navigable water on the Rio Grande River because that project threatened to destroy navigability below. But this is not such a case. Federal authority over Kuapa Pond does not stem solely from an effect on navigable water elsewhere, although this might be a sound alternative basis for regulatory jurisdiction. Instead, the authority arises because the pond itself is navigable water. 40 Nor does it advance analysis to suggest that we might decide to call certain waters "navigable" for some purposes, but "non-navigable" for purposes of the navigational servitude. See ante, at 170-171. To my knowledge, no case has ever so held. Although tests of navigability have originated in other contexts, prior cases have never attempted to limit any test of navigability to a single species of federal power. Indeed, often they have referred to "navigable" water as "public" water. See, e. g., The Propeller Genesee Chief v. Fitzhugh, 12 How., at 455, 457; The Daniel Ball, 10 Wall., at 563. In any event, to say that Kuapa Pond is somehow "nonnavigable" for present purposes, and that it is not subject to the navigational servitude for this reason, is merely to substitute one conclusion for another. To sustain its holding today, I believe that the Court must prove the more difficult contention that the navigational servitude does not extend to waters that are clearly navigable and fully subject to use as a highway for interstate commerce. 41 The Court holds, in essence, that the extent of the servitude does not depend on whether a waterway is navigable under any of the tests, but on whether the navigable waterway is "natural" or privately developed. In view of the fact that Kuapa Pond originally was created by natural forces, and that its separation from the Bay has been maintained by the interaction of natural forces and human effort, neither characterization seems particularly apt in this case.5 One could accept the Court's approach, however, and still find that the servitude extends to Kuapa Pond, by virtue of its status prior to development under the ebb-and-flow test. Nevertheless, I think the Court's reasoning on this point is flawed. In my view, the power we describe by the term "navigational servitude" extends to the limits of interstate commerce by water; accordingly, I would hold that it is coextensive with the "navigable waters of the United States." 42 As the Court recognizes, ante, at 174-175, the navigational servitude symbolizes the dominant federal interest in navigation implanted in the Commerce Clause. See Scranton v. Wheeler, 179 U.S. 141, 159-163, 21 S.Ct. 48, 55-57, 45 L.Ed. 126 (1900); cf. Gibbons v. Ogden, 9 Wheat. 1, 189-190, 6 L.Ed. 23 (1824). To preserve this interest, the National Government has been given the power not only to regulate interstate commerce by water, but also to control the waters themselves, and to maintain them as "common highways, . . . forever free." See the Act of Aug. 7, 1789, 1 Stat. 50, 52, n. (a) (navigable waters in Northwest Territory). See United States v. Chandler-Dunbar Co., 229 U.S. 53, 62-64, 33 S.Ct. 667, 671-672, 57 L.Ed. 1063 (1913); Gilman v. Philadelphia, 3 Wall. 713, 724-725, 18 L.Ed. 96 (1866). The National Government is guardian of a public right of access to navigable waters of the United States. The navigational servitude is the legal formula by which we recognize the paramount nature of this governmental responsibility. 43 The Court often has observed the breadth of federal power in this context. In United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956), for example, it stated: 44 "The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. 45 That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one. The power is a privilege which we have called 'a dominant servitude' or 'a superior navigation easement.' " (Citations omitted.) Id., at 224-225, 76 S.Ct., at 261. 46 Perhaps with somewhat different emphasis, the Court also has stated, in cases involving navigable waters, that "the flow of the stream [is] in no sense private property," United States v. Chandler-Dunbar Co., 229 U.S., at 66, 33 S.Ct., at 673, and that the waters themselves "are the public property of the nation." Gilman v. Philadelphia, 3 Wall., at 725. 47 The Court in Twin City Power Co. recognized that what is at issue is a matter of power, not of property. The servitude, in order to safeguard the Federal Government's paramount control over waters used in interstate commerce, limits the power of the States to create conflicting interests based on local law. That control does not depend on the form of the water body or the manner in which it was created, but on the fact of navigability and the corresponding commercial significance the waterway attains. Wherever that commerce can occur, be it Kuapa Pond or Honolulu Harbor, the navigational servitude must extend. III 48 The conclusion that the navigational servitude extends to privately created or enhanced waters does not entirely dispose of this case. There remains the question whether the Government's resort to the servitude requires compensation for private investment instrumental in effecting or improving navigability. The Court, of course, concludes that there is no navigational servitude and, accordingly, that assertion of public access constitutes a compensable taking. Because I do not agree with the premise, I cannot conclude that the right to compensation for opening the pond to the public is a necessary result. Nevertheless, I think this question requires a balancing of private and public interests. 49 Ordinarily, "[w]hen the Government exercises [the navigational] servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone." United States v. Kansas City Ins. Co., 339 U.S. 799, 808, 70 S.Ct. 885, 890, 94 L.Ed. 1277 (1950). See also United States v. Willow River Co., 324 U.S. 499, 509-510, 65 S.Ct. 761, 767, 89 L.Ed. 1101 (1945); Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82, 87-88, 33 S.Ct. 679, 680-681, 57 L.Ed. 1083 (1913); Gibson v. United States, 166 U.S. 269, 276, 17 S.Ct. 578, 580, 41 L.Ed. 996 (1897). The Court's prior cases usually have involved riparian owners along navigable rivers who claim losses resulting from the raising or lowering of water levels in the navigable stream, or from the construction of artificial aids to navigation, such as dams or locks. In these cases the Court has held that no compensation is required for loss in water power due to impairment of the navigable water's flow, e. g., United States v. Twin City Power Co., 350 U.S., at 226-227, 76 S.Ct., at 261-262; United States v. Chandler-Dunbar Co., 229 U.S., at 65-66, 33 S.Ct., at 672-673; for loss in "head" resulting from raising the stream, United States v. Willow River Co., 324 U.S., at 507-511, 65 S.Ct., at 766-768; for damage to structures erected between low- and high-water marks, United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 595-597, 61 S.Ct. 772, 774-776, 85 L.Ed. 1064 (1941); for loss of access to navigable water caused by necessary improvements, United States v. Commodore Park, Inc., 324 U.S. 386, 390-391, 65 S.Ct. 803, 805-806, 89 L.Ed. 1017 (1945); Scranton v. Wheeler, 179 U.S., at 163, 21 S.Ct., at 57; or for loss of value to adjoining land based on potential use in navigational commerce, United States v. Rands, 389 U.S. 121, 124-125, 88 S.Ct. 265, 267-268, 19 L.Ed.2d 329 (1967). The Court also has held that no compensation is required when "obstructions," such as bridges or wharves, are removed or altered to improve navigation, despite their obvious commercial value to those who erected them, and despite the Federal Government's original willingness to have them built. See, e. g., Greenleaf Lumber Co. v. Garrison, 237 U.S. 251, 256, 258-264, 35 S.Ct. 551, 552, 553-556, 59 L.Ed. 939 (1915); Union Bridge Co. v. United States, 204 U.S. 364, 400, 27 S.Ct. 367, 380, 51 L.Ed. 523 (1907).6 50 These cases establish a key principle that points the way for decision in the present context. In most of them, the noncompensable loss was related, either directly or indirectly, to the riparian owner's "access to, and use of, navigable waters." United States v. Rands, 389 U.S., at 124-125, 88 S.Ct., at 268. However that access or use may have been turned to account for personal gain, and no matter how much the riparian owner had invested to enhance the value, the Court held that these rights were shared with the public at large. Actions taken to improve their value for the many caused no reimbursable damage to the few who, by the accident of owning contiguous "fast land," previously enjoyed the blessings of the common right in greater measure. See, e. g., United States v. Commodore Park, Inc., 324 U.S., at 390-391, 88 S.Ct., at 805-806. The Court recognized that encroachment on rights inhering separately in the adjoining "fast land," United States v. Virginia Electric Co., 365 U.S. 624, 628, 81 S.Ct. 784, 788, 5 L.Ed.2d 838 (1961), or resulting from access to nonnavigable tributaries, see United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917), might form the basis for a valid compensation claim. But the principal distinction was that these compensable values had nothing to do with use of the navigable water. 51 Application of this principle to the present case should lead to the conclusion that the developers of Kuapa Pond have acted at their own risk and are not entitled to compensation for the public access the Government now asserts. See Union Bridge Co. v. United States, 204 U.S., at 400, 27 S.Ct., at 380. The chief value of the pond in its present state obviously is a value of access to navigable water. Development was undertaken to improve and enhance this value, not to improve the value of the pond as some aquatic species of "fast land."7 Petitioners do not question the Federal Government's plenary control over the waters of the Bay, and they have no vested right in access to its open water. Since the value of the pond and the motive for improving it lie in access to a highway of commerce, I am drawn to the conclusion that the petitioners' interest in the improved waters of the pond is not subject to compensation. Whatever expectancy petitioners may have had in control over the pond for use as a fishery was surrendered in exchange for the advantages of access when they cut a channel into the Bay. 52 In contrast, the Government's interest in vindicating a public right of access to the pond is substantial. It is the very interest in maintaining "common highways, . . . forever free." After today's decision, it is open to any developer to claim that private improvements to a waterway navigable in interstate commerce have transformed "navigable water of the United States" into private property, at least to the extent that he may charge for access to the portion improved. Such appropriation of navigable waters for private use directly injures the freedom of commerce that the navigational servitude is intended to safeguard. In future cases, of course, the Army Corps of Engineers may alleviate this danger by conditioning permission for connection with other waterways on a right of free public access. But it seems to me that the inevitable result of today's decision is the introduction of new legal uncertainty in a field where I had thought the "battles long ago," ante, at 177, had achieved some settled doctrine. IV 53 I come, finally, to the question whether Kuapa Pond's status under state law ought to alter this conclusion drawn from federal law. The Court assumes, without much discussion, that Kuapa Pond is the equivalent of "fast land" for purposes of Hawaii property law. There is, to be sure, support for this assumption, and for present purposes I am prepared to follow the Court in making it. See, e. g., In re Application of Kamakana, 58 Haw. 632, 574 P.2d 1346 (1978). Nonetheless, I think it clear that local law concerns rights of title and use between citizen and citizen, or between citizen and state, but does not affect the scope or effect of the federal navigational servitude. 54 The rights in Kuapa fisheries that have been part of Hawaii law since the Great Mahele are not unlike the right to the use of the floor of a bay that was at issue in Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82, 33 S.Ct. 679, 57 L.Ed. 1083 (1913). There the Court found no entitlement to compensation for destruction of an oyster-bed in the course of dredging a channel. The Court reasoned: "If the public right of navigation is the dominant right, and if, as must be the case, the title of the owner of the bed of navigable waters holds subject absolutely to the public right of navigation, this dominant right must include the right to use the bed of the water for every purpose which is in aid of navigation." Id., at 87, 33 S.Ct., at 680. By similar logic, I do not think Hawaii or any other State is at liberty through local law to defeat the navigational servitude by transforming navigable water into "fast land." Instead, state-created interests in the waters or beds of such navigable water are secondary to the navigational servitude. Thus, I believe this case should be decided purely as a matter of federal law, in which state law cannot control the scope of federal prerogatives. 55 For all of the foregoing reasons, the judgment of the Court of Appeals was correct. I therefore dissent. 1 In the companion to this case, Vaughn v. Vermilion Corp., 444 U.S. 206, 100 S.Ct. 399, 62 L.Ed.2d 365, the Louisiana Court of Appeal held that privately constructed canals, connected to navigable waters of the United States, navigable in fact, and used for commerce, are not subject to the federal navigational servitude. 356 So.2d 551, writ denied, La., 357 So.2d 558 (1978). 2 Title 33 U.S.C. § 403 provides: "The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same." 3 Petitioners do not challenge the Court of Appeals' holding that the Hawaii Kai Marina is within the scope of Congress' regulatory power and subject to regulation by the Army Corps of Engineers pursuant to its authority under § 10 of the Rivers and Harbors Appropriation Act, 33 U.S.C. § 403. 4 The Government further argues: "The fact that the conversion was accomplished at private expense does not exempt Kuapa Pond from the navigable waters of the United States. To allow landowners to dredge their fast lands and reshape the navigable waters of the United States to more conveniently serve their land, and then to exclude the public from the navigable portions flowing over the site of former fast lands, would unduly burden navigation and commerce. The states lack the power under the Commerce Clause to sanction any such form of private property. . . ." Brief for United States 14-15. 5 Petitioners contend that the term "navigable waters of the United States," which has been traditionally employed to identify water subject to federal regulation and admiralty jurisdiction, see infra, this page and 172, "is so inherently unworkable with regard to Hawaiian fish ponds that it does not represent a meaningful or equitable standard under which public and private rights may be determined." Pet. for Cert. 8. The efforts to distinguish "fast lands" from public rights in waterways subject to the navigational servitude, however, has been the subject of litigation for more than a century, and in the absence of something more unusual than the situation presented here it is the Hawaiian fishpond that must fit into the decisions of this Court, rather than the latter being tailored to exclude the fishpond. 6 See, e. g., United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960) (deposit of industrial solids into river held to create an "obstruction" to the "navigable capacity" of the river forbidden by § 10 of the Rivers and Harbors Appropriation Act of 1899). The Corps of Engineers has adopted the following general definition of "navigable waters": "Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity." 33 CFR § 329.4 (1978). 7 "Navigable water" subject to federal admiralty jurisdiction was defined as including waters that are navigable in fact in The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058 (1852). See also, e. g., The Belfast, 7 Wall. 624, 19 L.Ed. 266 (1869). And in Ex parte Boyer, 109 U.S. 629, 3 S.Ct. 434, 27 L.Ed. 1056 (1884), this Court held that such jurisdiction extended to artificial bodies of water: "Navigable water situated as this canal is, used for the purposes for which it is used,—a highway for commerce between ports and places in different states, carried on by vessels such as those in question here,—is public water of the United States, and within the legitimate scope of the admiralty jurisdiction conferred by the constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a state, and subject to its ownership and control; and it makes no difference as to the jurisdiction of the district court that one or the other of the vessels was at the time of the collision on a voyage from one place in the state of Illinois to another place in that state." Id., at 632, 3 S.Ct., at 435-36. Congress, pursuant to its authority under the Necessary and Proper Clause of Art. I to enact laws carrying into execution the powers vested in other departments of the Federal Government, has also been recognized as having the power to legislate with regard to matters concerning admiralty and maritime cases. Butler v. Boston S.S. Co., 130 U.S. 527, 557, 9 S.Ct. 612, 619, 32 L.Ed. 1017 (1889). See also, e. g., In re Garnett, 141 U.S. 1, 12, 11 S.Ct. 840, 842, 35 L.Ed. 631 (1891). 8 Thus, this Court has observed that "[c]onfiscation may result from a taking of the use of property without compensation quite as well as from the taking of the title." Chicago, R. I. & P. R. Co. v. United States, 284 U.S. 80, 96, 52 S.Ct. 87, 92, 76 L.Ed. 177 (1931). 9 We do not decide, however, whether in some circumstances one of these factors by itself may be dispositive. 10 While it was still a fishpond, a few flat-bottomed shallow draft boats were operated by the fishermen in their work. There is no evidence, however, that even these boats could acquire access to the adjacent bay and ocean from the pond. Although Kuapa Pond clearly was not navigable in fact in its natural state, the dissent argue that the pond nevertheless was "navigable water of the United States" prior to its development because it was subject to the ebb and flow of the tide. Post, at 181, 183, 186. This Court has never held, however, that whenever a body of water satisfies this mechanical test, the Government may invoke the "navigational servitude" to avoid payment of just compensation irrespective of the private interests at stake. 11 See, e. g., United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1394, 206 Ct.Cl. 649, 669-670 (1975); United States v. Lutz, 295 F.2d 736, 740 (CA5 1961). As stated by Mr. Justice Brandeis, "[a]n essential element of individual property is the legal right to exclude others from enjoying it." International News Service v. Associated Press, 248 U.S. 215, 250, 39 S.Ct. 68, 76, 63 L.Ed. 211 (1918) (dissenting opinion). 1 The District Court found that "the Pacific tides ebbed and flowed over Kuapa Pond in its pre-marina state." 408 F.Supp. 42, 50 (D.Haw.1976). The tide entered through two openings in the barrier beach; it also percolated through the barrier beach itself. Id., at 46. Although "[l]arge areas of land at the inland end were completely exposed at low tide," the entire pond was inundated at high tide. Ibid. 2 The Court's opinion also embraces, distressingly for me, an implication that the amount of the private investment somehow influences the legal result. Ante, at 167, 169, and 180. I would think that the consequences would be the same whether the developer invested $100 or, as the Court stresses, ante, at 169, "millions of dollars." 3 Essentially for the reasons stated by the District Court, 408 F.Supp., at 49-50, I stop short of agreeing with the Government's contention that the pond has been shown to be navigable under the Appalachian Power test. Although petitioners found it "reasonable" to deepen the pond for private development of the surrounding land, it does not follow that the same improvements would be equally "reasonable" if viewed solely in terms of benefits to navigational commerce. 4 In addressing this question, we quickly may cast aside any distinction based on the qualifying phrase "of the United States." As prior cases demonstrate, this phrase is intended to draw the line between waters that may be navigated only intrastate, and those that are subject to navigation in interstate and foreign commerce. See, e. g., United States v. Utah, 283 U.S. 64, 75, 51 S.Ct. 438, 440, 75 L.Ed. 844 (1931); The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999 (1871). Since Kuapa Pond opens onto a bay of the Pacific Ocean, there can be no doubt that it may be navigated in interstate and foreign commerce. 5 The natural and human contributions to the character of the pond are described by the District Court. See 408 F.Supp., at 46. 6 There have been cases where compensation was required for private investment in improvement of navigation. Petitioners place particular reliance on Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463 (1893). In that case, a private company had constructed locks and dams along the Monongahela River in order to improve its navigability. The company acted under express authority from the State of Pennsylvania, and at the invitation of the United States. Subsequently, Congress authorized the purchase or condemnation of one lock and dam in connection with a project to improve the upper waters of the river. Congress did not authorize compensation for the right to collect tolls. The Court emphasized the Government's role in encouraging the project, and held that, in consequence, "it does not lie in the power of . . . the United States to say that such lock and dam are an obstruction, and wrongfully there, or that the right to compensation for the use of this improvement by the public does not belong to its owner, the navigation company." Id., at 335, 13 S.Ct., at 630. Subsequent decisions have limited Monongahela Navigation Co. to this rationale. See Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82, 89, 33 S.Ct. 679, 681, 57 L.Ed. 1083 (1913); Greenleaf Lumber Co. v. Garrison, 237 U.S., at 265, 35 S.Ct., at 556; cf. United States v. Rands, 389 U.S. 121, 126, 88 S.Ct. 265, 268, 19 L.Ed.2d 329 (1967). There is a striking difference between Monongahela Navigation Co. and this case. Although the Army Corps of Engineers originally may have acquiesced in the improvement of Kuapa Pond, it did not invite or actively encourage the development for the benefit of public navigation. The difference is significant. In Monongahela Navigation Co. the United States was required to compensate for the commercial value of navigational improvements it had promoted. In this case, in order to maintain uniformly free navigation, the Government now must compensate for improvements it might not have undertaken if it were at liberty independently to assess the advisability of opening the pond to navigation. 7 I need not reach the question whether petitioners could have been compensated for the value of the pond as a fishery if the Government had decided, prior to development of Hawaii Kai, either to cut off access to the Bay or to dredge the pond. But cf. United States v. Commodore Park, Inc., 324 U.S. 386, 390, 65 S.Ct. 803, 805, 89 L.Ed. 1017 (1945); Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82, 33 S.Ct. 679, 57 L.Ed. 1083 (1913).

34

444 U.S. 193 100 S.Ct. 402 62 L.Ed.2d 355 Francis Rick FERRI, Petitioner,v.Daniel ACKERMAN. No. 78-5981. Argued Oct. 2, 1979. Decided Dec. 4, 1979. Syllabus A Federal District Court, pursuant to the Criminal Justice Act of 1964, appointed respondent attorney to represent petitioner, an indigent defendant, in a federal criminal trial. After petitioner was convicted and pending his unsuccessful appeal, he sued respondent in a Pennsylvania state court for alleged malpractice in respondent's conduct of the federal criminal trial. The trial court dismissed the complaint on the ground that respondent was immune from liability. The Pennsylvania Supreme Court affirmed, resting its decision on federal law and holding that the justification for judicial immunity embraced in the federal system and encompassing prosecutors and grand jurors, as well as judges, was equally applicable to defense counsel as participants in judicial proceedings. Held: An attorney appointed by a federal judge to represent an indigent defendant in a federal criminal trial is not, as a matter of federal law, entitled to absolute immunity in a state malpractice suit brought against him by his former client. Pp. 199-205. (a) There is nothing in the language, the legislative history, or the basic purpose of the Criminal Justice Act of 1964 in providing compensation for court-appointed attorneys to support the conclusion that Pennsylvania must accept respondent's claim of immunity from liability for a state tort. The fact that respondent was compensated from federal funds is not a sufficient basis for inferring that Congress intended to grant him immunity from malpractice suits. Pp. 199-201. (b) The primary rationale for granting immunity to judges, prosecutors, and other public officials—namely, the societal interest in providing such officials with the maximum ability to deal fearlessly and impartially with the public at large—does not apply to court-appointed defense counsel sued for malpractice by his own client. In contrast to other officers of the court, the primary office performed by appointed counsel parallels the office of privately retained counsel. Although appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client, and, indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation. Pp. 202-204. 483 Pa. 90, 394 A.2d 553, reversed and remanded. Julian N. Eule, Philadelphia, Pa., for petitioner. John P. Arness, Washington, D. C., for respondent. Mr. Justice STEVENS delivered the opinion of the Court. 1 The question is whether an attorney appointed by a federal judge to represent an indigent defendant in a federal criminal trial is, as a matter of federal law, entitled to absolute immunity in a state malpractice suit brought against him by his former client. 2 On August 28, 1974, a federal grand jury for the Western District of Pennsylvania named petitioner as a defendant in five counts of a nine-count federal indictment alleging that he had participated in a 1971 conspiracy to construct and use a bomb in violation of various federal statutes.1 In due course, the District Court appointed respondent to serve as petitioner's counsel pursuant to the Criminal Justice Act of 1964.2 Respondent represented petitioner during pretrial proceedings and a 12-day trial. The jury found petitioner guilty on all counts; the judge imposed a sentence of 20 years on the conspiracy and bombing counts and an additional 10 years on the counts charging violations of the Internal Revenue Code. The judgments of conviction were affirmed summarily by the Court of Appeals for the Third Circuit.3 3 While that appeal was pending, on March 4, 1976, petitioner filed a "complaint in negligence" against respondent in the Court of Common Pleas for Union County, Pa.4 The complaint described 67 different instances of alleged malpractice in respondent's conduct of the federal criminal trial and prayed for the recovery of substantial pecuniary damages.5 Respondent filed a demurrer, asserting that the complaint failed to state a cause of action and that respondent was immune from any civil liability arising out of his conduct of petitioner's defense. 4 Petitioner thereafter filed a "Traversal Brief" in which he argued that the sufficiency of the malpractice complaint was supported by various sections of the Pennsylvania Rules of Civil Procedure and the Pennsylvania Constitution.6 In that brief petitioner added a claim that respondent had negligently failed to plead the statute of limitations as a bar to the Internal Revenue Code counts of the indictment.7 5 Without ruling on its sufficiency, the Court of Common Pleas, sitting en banc, dismissed the complaint on the ground that decided cases and strong public policy required that a lawyer appointed to represent an indigent defendant in a federal trial must be immune from liability for damages. The court cited one Pennsylvania case8 but relied primarily on federal authorities for its conclusion.9 By a divided vote, the Pennsylvania Supreme Court affirmed the order of dismissal, squarely resting its decision on federal law. 6 Because the case concerned a claim of immunity by a participant in a federal proceeding, the Pennsylvania Supreme Court believed that it was required to look to federal law to determine whether immunity exists and, if so, its nature and scope.10 After reviewing federal cases holding that the common-law doctrine of judicial immunity has been embraced in the federal system and encompasses prosecutors and grand jurors as well as judges, the court concluded that the justification for the immunity—the concern that the threat of harassment by unfounded litigation might impair the public officer's performance of his official duties—was equally applicable to defense counsel as participants in judicial proceedings. The court held that the privilege was absolute and therefore applied even to a claim of gross negligence and even though the allegation of malpractice did not concern an exercise of counsel's discretion. 7 The two dissenting justices agreed that federal law was applicable, but regarded appointed counsel as more analogous to privately retained counsel than to a federal officer such as a prosecutor. Because those who can afford to retain counsel of their own choosing have a remedy for malpractice, the dissenters felt that the denial of a comparable remedy for the indigent would establish a lower standard of care for appointed counsel. 8 The narrow issue presented to this Court is whether federal law in any way pre-empts the freedom of a State to decide the question of immunity in this situation in accord with its own law. We are not concerned with the elements of a state cause of action for malpractice and need not speculate about whether a state court would consider petitioner's allegations sufficient to establish a breach of duty or a right to recover damages.11 Nor are we concerned with the question whether Pennsylvania may conclude as a matter of state law that respondent is absolutely immune.12 For when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law. U.S.Const., Art. VI, cl. 2. 9 For the purposes of our analysis, it is appropriate to assume that petitioner is entitled to prevail as a matter of state law, and to ask whether federal law requires a State to accept respondent's defense of absolute immunity. We may begin the inquiry by noting that there are separate federal interests that arguably could support the application of a separate federal rule in cases of this kind. A federal statute provided the basis for respondent's appointment and compensation, and he participated in a federal judicial proceeding as an "officer" of the federal court. The identification of those federal interests does not, however, demonstrate that an applicable federal rule of law has been adopted by Congress or recognized by this Court.13 We therefore must consider whether respondent's immunity claim is supported by (1) the enactment of the Criminal Justice Act of 1964 or (2) our cases considering the immunity of federal officers for the performance of their assigned duties. 10 * The Criminal Justice Act of 1964 was enacted to provide compensation for attorneys appointed to represent indigent defendants in federal criminal trials.14 In response to evidence that unpaid appointed counsel were sometimes less diligent or less thorough than retained counsel,15 Congress concluded that reasonable compensation would improve the quality of the representation of indigents. Although it might well have been suggested that a statutory immunity would be helpful in inducing counsel to accept representation of indigent defendants, there is nothing in the statute itself or in its legislative history to indicate that Congress ever considered—much less actually intended to implement—any such suggestion. Indeed, Congress' attempt to minimize the differences between retained and appointed counsel16 is more consistent with the view that Congress intended all defense counsel to satisfy the same standards of professional responsibility and to be subject to the same controls.17 11 The fact that federal funds provided the source of respondent's compensation is not a sufficient basis for inferring that Congress intended to grant him immunity from malpractice suits. Countless private citizens are the recipients of federal funds of one kind or another, but Congress surely did not intend that all such recipients would be immune for actions taken in the course of expending those funds. 12 In sum, we find nothing in the express language, the history, or the basic purpose of the Criminal Justice Act of 1964 to support the conclusion that Pennsylvania must accept respondent's claim of immunity from liability for a state tort. II 13 Without relying on an explicit statutory grant of immunity, this Court has held that various federal officers, such as a captain in the United States Navy and the Postmaster General,18 are entitled to immunity from liability for certain claims arising out of the performance of their official duties. The immunity recognized in those cases may be appropriately characterized as an incident of the federal office. 14 In a sense, a lawyer who is appointed to represent an indigent defendant in a federal judicial proceeding is also a federal officer. Since other federal officers—the judge, the prosecutor, and the grand jurors—enjoy immunity by virtue of their office, arguably that immunity should be shared by appointed counsel. There is, however, a marked difference between the nature of counsel's responsibilities and those of other officers of the court.19 As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. The societal interest in providing such public officials with the maximum ability to deal fearlessly and impartially with the public at large has long been recognized as an acceptable justification for official immunity.20 The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion. 15 In contrast, the primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation. The fear that an unsuccessful defense of a criminal charge will lead to a malpractice claim does not conflict with performance of that function. If anything, it provides the same incentive for appointed and retained counsel to perform that function competently.21 The primary rationale for granting immunity to judges, prosecutors, and other public officers does not apply to defense counsel sued for malpractice by his own client.22 16 It may well be true, as respondent argues, that valid policy reasons might justify an immunity for appointed counsel that need not be accorded to privately retained counsel. See n. 17, supra. Perhaps the most persuasive reason for creating such an immunity would be to make sure that competent counsel remain willing to accept the work of representing indigent defendants. If their monetary compensation is significantly less than that of retained counsel, and if the burden of defending groundless malpractice claims and charges of unprofessional conduct is disproportionately significant, it is conceivable that an immunity would be justified by the need to preserve the supply of lawyers available for this important work. Whether a sufficient need can be demonstrated that would justify such a rule, or whether such a problem might be better remedied by adjusting the level of compensation, are questions that can most appropriately be answered by a legislative body acting on the basis of empirical data. Therefore we do not evaluate those arguments. Having concluded that the essential office of appointed defense counsel is akin to that of private counsel and unlike that of a prosecutor, judge, or naval captain, we also conclude that the federal officer immunity doctrine explicated in cases like Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454, andButz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895, is simply inapplicable in this case. Accordingly, without reaching any question concerning the power of Congress to create immunity, we hold that federal law does not now provide immunity for court-appointed counsel in a state malpractice suit brought by his former client. 17 The judgment of the Supreme Court of Pennsylvania is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. 18 It is so ordered. 1 The relevant sections, codified in the Criminal Code and the Internal Revenue Code, are: 18 U.S.C. §§ 2, 371, 844(i); 26 U.S.C. §§ 5821, 5822, 5861, 5871. 2 18 U.S.C. § 3006A. The record indicates that petitioner had previously been represented by two other lawyers. An action against the first for malpractice is still pending; the second was permitted to withdraw when respondent was appointed to represent petitioner. 3 United States v. Ferri, 546 F.2d 419 (1976). 4 Because venue was improper, the case was later transferred to the Court of Common Pleas for Westmoreland County. 5 The prayer is somewhat ambiguous. For example, in one paragraph, petitioner, suing on behalf of his former wife as well as himself, asked for "double and contingent damages sustained as a direct result from the expenditure of funds and anxieties endured in the amount of Six Hundred Thousand Dollars ($6,000,000.oo [sic]) jointly and or severally as compensation for all." App. 20. His former wife, however, wrote to the clerk demanding that she be withdrawn as a plaintiff in what she characterized as "an abhorrent action." Id., at 23. 6 See id., at 31. 7 Petitioner's claim is that the 3-year statute of limitations contained in 26 U.S.C. § 6531 applies to the Internal Revenue Code counts. A 5-year period applies to the other counts. 18 U.S.C. § 3282. According to the indictment, the bombing occurred on August 26, 1971. The indictment was filed on August 28, 1974. Absent any tolling, petitioner asserts that the Internal Revenue Code counts were therefore time barred. Because of the failure by respondent (or either of petitioner's two previous lawyers, see n. 2, supra ) to plead the statute of limitations prior to trial, petitioner may be subject to an additional 10 years in prison. The Court of Appeals for the Third Circuit rejected the statute-of-limitations argument in its unpublished order, since it was raised for the first time on appeal. See App. 39. It is our understanding that the validity of the additional 10-year sentence has not yet been determined in any collateral proceeding. 8 Reese v. Danforth, Lancaster County, 131 June Term, 1976, aff'd per curiam, 241 Pa.Super. 604, 360 A.2d 629 (1976) (holding county public defenders immune from state malpractice suits). That case was reversed by the Supreme Court of Pennsylvania after we heard oral argument in this case. 486 Pa. 479, 406 A.2d 735 (1979). 9 The court also declined to rule on respondent's contention that the state court had no jurisdiction in an action based on ineffective assistance of counsel in a federal court because that issue could be raised on direct appeal in the criminal case or by way of collateral attack on the conviction. See App. 42. 10 "Since we are here concerned with an asserted immunity protecting a participant in a federal legal proceeding, we are required to look to the federal law to determine whether it exists and if it does, its nature and scope. Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). See also Carter v. Carlson, 144 U.S.App.D.C. 388, 391-392, 447 F.2d 358, 361-362 n. 5 (1971); Chandler v. O'Bryan, 445 F.2d 1045, 1055 (10th Cir. 1971); Garner v. Rathburn, 346 F.2d 55, 56 (10th Cir. 1965). As noted by the United States Supreme Court in Howard v. Lyons, supra, the very nature of a ruling of privilege requires reference to the law of the sovereign creating it for a determination of its nature and scope." 483 Pa., 90, 93, 394 A.2d 553, 555 (1978). 11 Cf. Walker v. Kruse, 484 F.2d 802 (CA7 1973). 12 See Reese v. Danforth, 486 Pa. 479, 406 A.2d 735 (1979), n. 8, supra. 13 When federal law is the source of the plaintiff's claim, there is a federal interest in defining the defenses to that claim, including the defense of immunity. See, e. g., Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 404, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401; Imbler v. Pachtman, 424 U.S. 409, 417-419, 96 S.Ct. 984, 988-989, 47 L.Ed.2d 128; Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288; Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019. That interest, of course, is not present in a case, such as this, arising under state law. 14 As amended in 1970, the rates of compensation are $30 per hour for time expended in court and $20 per hour for time reasonably expended out of court (or the minimum hourly rate established by a bar association in the district whichever is lower), plus reimbursement for expenses reasonably incurred. The maximum compensation may not exceed $1,000 for an attorney in a felony case or $400 where only misdemeanors are charged. 18 U.S.C. §§ 3006A(d)(1), (2). 15 See H.R.Rep. No. 864, 88th Cong., 1st Sess., 6 (1963), U.S.Code Cong. & Admin.News 1964, p. 2990; S.Rep. No. 346, 88th Cong., 1st Sess., 2 (1963); 110 Cong.Rec. 454 (1964) (remarks of Rep. Fraser); Hearings on S. 63 et al. before the Senate Judiciary Committee, 88th Cong., 1st Sess., 249 (1963). 16 Congress clearly wanted appointed counsel to share as much of retained counsel's characteristic independence from the Government as was possible notwithstanding the Government subsidy. This is borne out by the debate over whether to include the establishment of fulltime public defender offices in the original bill. The Senate version provided for public defenders. The House bill did not, at least partly out of fear that full-time public defenders would be too closely identified with the Government's efforts to separate the guilty from the innocent, and that there would be a risk of institutional reluctance adequately to defend the guilty. See 110 Cong.Rec. 18558 (1964) (remarks of Rep. Moore, author of the bill): "The Senate bill, in addition to authorizing the appointment of private counsel, would have empowered the Federal Government to establish Federal public defender offices in any or all of the judicial districts throughout the country. This would have had the effect of placing the administration of justice totally in the hands of the Federal Government. An individual, accused of a crime, would have been tried before a Federal judge, prosecuted by a Federal district attorney, and defended by a Federal public defender. Thus, the total right to a fair trial and to the preservation of one's right to liberty would be solely dependent upon men appointed by the Federal Government and compensated out of the Federal Treasury. "This condition could easily have led to the establishment of totalitarian justice with the well-known unfairness and inequities found in totalitarian states. In addition, this condition could have severely undermined the duties and responsibilities of members of the bar who I believe are under an obligation to defend individuals, even those without funds and even [those] charged in an unpopular cause. The burdens of preserving a healthy society have been gradually eroded in recent years through too great a dependence upon the Federal Government. It did not seem desirable to a majority of the Members of the House to further this erosion. The House bill, then, adopted a philosophy totally different from that reported in the Senate." See also id., at 445 (remarks of Rep. Moore); id. at 455 (remarks of Rep. McCulloch); Hearings on H.R. 1027 et al. before Subcommittee No. 5 of the House Judiciary Committee, 88th Cong., 1st Sess., 110 (1963). The House view prevailed at the conference, and the 1964 version of the Act contained no provision for public defenders. In 1970, after a study of the need for public defenders, particularly in the larger districts, Congress amended the Criminal Justice Act to permit the establishment of public defenders to supplement individual appointments of defense counsel. We have found nothing in the legislative history of the 1970 amendments that indicates Congress intended public defenders to be immune from malpractice actions. 17 As THE CHIEF JUSTICE noted several years ago, "defense counsel who is appointed by the court . . . has exactly the same duties and burdens and responsibilities as the highly paid, paid-in-advance criminal defense lawyer." Burger, Counsel for the Prosecution and Defense—Their Roles Under the Minimum Standards, 8 Am.Crim.L.Q. 2, 6 (1969). See also ABA Project on Standards for Criminal Justice, Defense Function § 3.9 (App.Draft 1971). Respondent argues that there are valid policy reasons that justify an immunity for appointed counsel not accorded privately retained counsel. The claim is that a defendant's relationship with appointed counsel is substantially different than it would be with retained counsel because of the inability to choose and freely to discharge counsel. See, e. g., Criminal Justice Act Plan for the Western District of Pennsylvania § IV A(3). The defendant would therefore tend to perceive appointed counsel as a representative of the government and to view him with suspicion. After conviction, a defendant's inevitable bitterness would lead to a high risk of retaliatory lawsuits, the same fear that underlies immunity for judges and prosecutors. Butz v. Economou, 438 U.S. 478, 510, 98 S.Ct. 2894, 2912, 57 L.Ed.2d 895. Further, because of the increased risk of malpractice actions, appointed counsel would be more susceptible to pressure from clients to call additional witnesses or to make additional arguments that would in fact prejudice the defendant's own case. But respondent has not directed our attention to any empirical data—in judicial decisions, legislative hearings, or scholarly studies—to support his conclusions that the risk of malpractice litigation deters members of the private bar from accepting the representation of indigent defendants or adversely affects the quality of representation. Given the speculative, though not implausible, nature of respondent's arguments, we are unwilling to ascribe to Congress an intent to accord an immunity to appointed counsel not given retained counsel in the face of the silent legislative history on this point. 18 Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454; Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780; Kendall v. Stokes, 3 How. 87, 44 U.S. 87, 11 L.Ed. 506. 19 Writing for the Court in In re Griffiths, 413 U.S. 717, 728-729, 93 S.Ct. 2851, 2858, 37 L.Ed.2d 910, Mr. Justice Powell responded to the argument that a lawyer is comparable to other holders of governmental office as follows: "We note at the outset that this argument goes beyond the opinion of the Connecticut Supreme Court, which recognized that a lawyer is not an officer in the ordinary sense. 162 Conn. [249,] at 254, 294 A.2d [281,] 283 [(1972)]. This comports with the view of the Court expressed by Mr. Justice Black in Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1956): " 'It has been stated many times that lawyers are "officers of the court." One of the most frequently repeated statements to this effect appears in Ex parte Garland, 4 Wall. 333, 378 [71 U.S. 333, 378], 18 L.Ed. 366. The Court pointed out there, however, that an attorney was not an "officer" within the ordinary meaning of that term. Certainly nothing that was said in Ex parte Garland or in any other case decided by this Court places attorneys in the same category as marshals, bailiffs, court clerks or judges. Unlike these officials a lawyer is engaged in a private profession, important though it be to our system of justice. In general he makes his own decisions, follows his own best judgment, collects his own fees and runs his own business. The word "officer" as it has always been applied to lawyers conveys quite a different meaning from the word "officer" as applied to people serving as officers within the conventional meaning of that term.' Id., at 405 (footnote omitted)." 20 As Mr. Justice Harlan wrote in his opinion in Barr v. Matteo, 360 U.S. 564, 571-572, 79 S.Ct. 1335, 1340-1341, 3 L.Ed.2d 1434: "The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. The matter has been admirably expressed by Judge Learned Hand: " 'It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. . . .' Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581." 21 There is no claim that retained counsel are rendered immune from malpractice actions by virtue of their participation in federal criminal trials. 22 Our discussion is confined to immunity in malpractice actions. We do not address the question whether defense counsel is immune from other kinds of tort suits such as a defamation action brought by someone other than his client. Cf. Butz v. Economou, 438 U.S., at 512, 98 S.Ct., at 2913 (dictum).

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444 U.S. 212 100 S.Ct. 410 62 L.Ed.2d 394 CARBON FUEL COMPANY, Petitioner,v.UNITED MINE WORKERS OF AMERICA et al. No. 78-1183. Argued Nov. 5, 1979. Decided Dec. 10, 1979. Syllabus Respondent local labor unions engaged in a number of unauthorized or "wildcat" strikes at petitioner employer's coal mines in violation of collective-bargaining agreements between petitioner and respondent international union (UMWA). The efforts of respondent regional subdivision (District 17) of UMWA to persuade the miners not to strike and to return to work were uniformly unsuccessful. Petitioner subsequently brought suit against respondents in Federal District Court pursuant to § 301 of the Labor Management Relations Act, 1947, seeking injunctive relief and damages, and judgments were rendered against all respondents. The Court of Appeals affirmed in part the judgments against the local unions but vacated the judgments against UMWA and District 17, holding that the question was not whether UMWA or District 17 did everything they might have done to prevent the strikes or bring about their termination, but whether they instigated, supported, ratified, or encouraged the strikes, and that there was no evidence of the latter conduct. Held: Neither UMWA nor District 17 can be held liable in damages under the circumstances of this case. No obligation on their part to use all reasonable means to prevent and end unauthorized strikes can be implied in law either because the collective-bargaining agreements contained a provision for arbitration of disputes or because the agreements provided that the parties "agree and affirm that they will maintain the integrity of this contract." Pp. 216-222. (a) The legislative history of § 301 is clear that Congress limited a union's responsibility for strikes in breach of contract to cases where the union may be found responsible according to the common-law rule of agency, and here petitioner failed to prove agency as required by §§ 301(b) and (e). Pp. 216-218. (b) The bargaining history of the collective-bargaining agreements clearly shows that, whatever the integrity clause of the agreements may mean, the parties purposely decided not to impose on the union an obligation to take disciplinary or other actions to get unauthorized strikers back to work. Pp. 218-222. 582 F.2d 1346, affirmed. David D. Johnson, Charleston, W. Va., for petitioner. Harrison Combs, Washington, D. C., for respondents. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The question for decision in this case is whether an international union, which neither instigates, supports, ratifies, nor encourages "wildcat" strikes engaged in by local unions in violation of a collective-bargaining agreement, may be held liable in damages to an affected employer if the union did not use all reasonable means available to it to prevent the strikes or bring about their termination. 2 Petitioner, Carbon Fuel Co., and respondent United Mine Workers of America (UMWA), were parties to the National Bituminous Coal Wage Agreements of 1968 and 1971, collective-bargaining agreements covering, inter alia, workers at petitioner's several coal mines in southern West Virginia. Forty-eight unauthorized or "wildcat" strikes were engaged in by three local unions at petitioner's mines from 1969 to 1973. Efforts of District 17, a regional subdivision of UMWA, to persuade the miners not to strike and to return to work were uniformly unsuccessful.1 3 Petitioner brought this suit pursuant to § 301 of the Labor Management Relations Act, 1947 (Taft-Hartley Act), 61 Stat. 156, 29 U.S.C. § 185, in the District Court for the Southern District of West Virginia. UMWA, District 17, and the three local unions were named defendants. The complaint sought injunctive relief2 and damages, alleging that the strikes were in violation of the two collective-bargaining agreements. The case was tried before a jury. The trial judge found as a matter of law that the strikes violated the agreements. The trial judge also instructed the jury, over objection of UMWA and District 17, that those defendants might be found liable in damages to petitioner "[i]f you find from a preponderance of the evidence that the International and District Unions did not use all of the reasonable means available to them to prevent work stoppages or strikes from occurring in violation of the contract, or to terminate any such work stoppages or strikes after they began. . . ." App.197a. Verdicts in different amounts were returned against UMWA, District 17, and the three local unions. 4 On appeal, the Court of Appeals for the Fourth Circuit vacated in part the judgments against the three local unions but otherwise affirmed those judgments.3 However, the Court of Appeals vacated the judgments against UMWA and District 17, and remanded to the District Court with directions to dismiss the case against those defendants. 582 F.2d 1346 (1978). The court held that this result was required by its earlier decision in United Construction Workers v. Haislip Baking Co., 223 F.2d 872 (1955). 582 F.2d, at 1351. Haislip held as follows, 223 F.2d, at 877-878: 5 "We have never held . . . that there is any responsibility on the part of a union for a strike with which it has had nothing to do; and there manifestly is no such liability. If [UMWA or District 17] had done nothing when [petitioner] called on them to help get the men back to work, there would have been no liability on the part of [UMWA or District 17]. This being true, defendants were not rendered liable by the efforts which [District 17] made to bring about an adjustment of the difficulty, even if they did not do everything that they might have done to that end. The question is not whether they did everything they might have done, but whether they adopted, encouraged or prolonged the continuance of the strike. There is no evidence of any sort that they did." 6 The Court of Appeals recognized that its conclusion was in conflict with the holding of the Court of Appeals for the Third Circuit in Eazor Express, Inc. v. International Brotherhood of Teamsters, 520 F.2d 951 (1975) (union liable under no-strike clause for failure to use best efforts to end unauthorized strikes).4 We granted certiorari to resolve the conflict. 440 U.S. 957, 99 S.Ct. 1495, 59 L.Ed.2d 769 (1979). We affirm. 7 Petitioner argues that the obligation of UMWA and District 17 to use all reasonable means to prevent and end unauthorized strikes in violation of the collective-bargaining agreement is either (a) implied in law because the agreement contains an arbitration provision or (b) in any event is to be implied from the provision of the agreement that the parties "agree and affirm that they will maintain the integrity of this contract. . . ." We find no merit in either argument. A. 8 Insofar as petitioner's argument relies on the history of § 301 and the congressional plan to prevent and remedy strikes in breach of contract by encouraging arbitration, the legislative history is clear that Congress limited the responsibility of unions for strikes in breach of contract to cases when the union may be found responsible according to the common-law rule of agency.5 9 Section 301(a) makes collective-bargaining agreements judicially enforceable. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). At the same time, Congress gave careful attention to the problem of strikes during the term of a collective-bargaining agreement, but stopped short of imposing liability upon a union for strikes not authorized, participated in, or ratified by it. Rather, to effectuate § 301(a), the Taft-Hartley Act provided in § 301(b) that a union "shall be bound by the acts of its agents," and in § 301(e) provided that the common law of agency shall govern "in determining whether any person is acting as an 'agent' of another person." In explaining § 301(e) Senator Taft stated, 93 Cong.Rec. 4022 (1947): 10 "If the wife of a man who is working at a plant receives a lot of telephone messages, very likely it cannot be proved that they came from the union. There is no case then. There must be legal proof of agency in the case of unions as in the case of corporations. . . ." (Emphasis supplied.) 11 Congress' reason for adopting the common-law agency test, and applying to unions the common-law doctrine of respondeat superior, follows the lead of Mr. Chief Justice Taft in Coronado Coal Co. v. Mine Workers, 268 U.S. 295, 304, 45 S.Ct. 551, 554, 69 L.Ed. 963 (1925), that to find the union liable "it must be clearly shown . . . that what was done was done by their agents in accordance with their fundamental agreement of association." The common-law agency test replaced the very loose test of responsibility incorporated in § 2(2) of the original 1935 National Labor Relations Act under which the term "employer" included "any person acting in the interest of an employer . . . ." 49 Stat. 450.6 12 Petitioner makes the distinct argument that we should hold the International liable for its own failure to respond to the locals' strike. In the face of Congress' clear statement of the limits of an international union's legal responsibility for the acts of one of its local unions, it would be anomalous to hold that an international is nonetheless liable for its failure to take certain steps in response to actions of the local. Such a rule would pierce the shield that Congress took such care to construct. Accordingly, we reject petitioner's suggestion that Congress' policy in favor of arbitration extends to imposing an obligation on the respondents, which agreed to arbitrate grievances, to use reasonable means to try to control the locals' actions in contravention of that agreement. 13 The Court of Appeals stated: "There was no evidence presented in the district court that either the District or International Union instigated, supported, ratified, or encouraged any of the work stoppages . . . ." 582 F.2d, at 1351. Under Art. XVI, § 1, of the UMWA constitution, the local unions lacked authority to strike without authorization from UMWA. App.195a. Moreover, UMWA had repeatedly expressed its opposition to wildcat strikes. Petitioner thus failed to prove agency as required by §§ 301(b) and (e), and we therefore agree with the Court of Appeals that "under these circumstances it was error for the [District Court] to deny the motions of these defendants' for directed verdicts." 582 F.2d, at 1351. B 14 We turn next to petitioner's argument that even if the no-strike obligation to be implied from the promise to resolve disputes by arbitration did not carry with it the further step of implying an obligation on UMWA and District 17 to use all reasonable efforts to end an unauthorized strike, that obligation should nevertheless be implied from the contract provision obligating UMWA and District 17 to "maintain the integrity of this contract. . . ." 15 In the 1947 Taft-Hartley Act Congress sought to promote numerous policies. One policy of particular importance—if not the overriding one—was the policy of free collective bargaining. See Teamsters v. Lucas Flour Co., 369 U.S. 95, 104, 82 S.Ct. 571, 577, 7 L.Ed.2d 593 (1962); NLRB v. Insurance Agents, 361 U.S. 477, 488, 80 S.Ct. 419, 426, 4 L.Ed.2d 454 (1960); Textile Workers v. Lincoln Mills, supra, 353 U.S., at 453-454, 77 S.Ct., at 916-917. And to make crystal clear the intention to leave the parties entirely free of any Government compulsion to agree to a proposal, or even reach an agreement, Congress added § 8(d) defining "to bargain collectively" as "not [to] compel either party to agree to a proposal or require the making of a concession." 29 U.S.C. § 158(d). See Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 254-255, 94 S.Ct. 2236, 2239-2240, 41 L.Ed.2d 46 (1974); NLRB v. Burns Security Services, 406 U.S. 272, 287, 92 S.Ct. 1571, 1582, 32 L.Ed.2d 61 (1972); H. K. Porter Co. v. NLRB, 397 U.S. 99, 104-106, 90 S.Ct. 821, 824-825, 25 L.Ed.2d 146 (1970); NLRB v. Insurance Agents Int'l Union, supra, 361 U.S., at 488, 80 S.Ct., at 426. It follows that the parties' agreement primarily determines their relationship. Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) (though policy in favor of arbitration may color interpretation of contract, it cannot impose an agreement to arbitrate where the parties have agreed not to arbitrate). See Steelworkers v. American Manufacturing Co., 363 U.S. 564, 570, 80 S.Ct. 1343, 1364, 4 L.Ed.2d 1403 (1960) (BRENNAN, J., concurring). If the parties' agreement specifically resolves a particular issue, the courts cannot substitute a different resolution. 16 The contractual provision to which petitioner looks to create the alleged union duty to use "all reasonable means" to end wildcat strikes is the promise to "maintain the integrity of this contract." Petitioner argues that the promise, intended to get disputes into arbitration, is meaningless if the UMWA and District 17 have no obligation to exert their best efforts to force the miners to live up to the contracts. 17 The bargaining history of the contracts completely answers petitioner's argument. The parties directly addressed the issue early in their bargaining history and, after first including such an obligation, specifically deleted it from their agreement. The first agreement between the parties, in 1941, contained an explicit no-strike clause. In order to avoid liability under § 301 for contract breaches, UMWA negotiated the deletion of the no-strike provision from the 1947 contract. Instead, the coverage of the contract was limited to employees "able and willing to work," and the parties agreed that all disagreements would be settled through arbitration or collective bargaining. In 1950 the contract was again rewritten. The "able and willing" provision was dropped and replaced by a promise "to maintain the integrity of this contract and to exercise their best efforts through available disciplinary measures to prevent stoppages of work by strike or lockout." (Emphasis supplied.)7 18 Because the union did not want to surrender its freedom to decide what measures to take or not to take in dealing with unauthorized strikes, it negotiated the deletion of the "best efforts through available disciplinary measures" clause. See International Union, UMWA v. NLRB, 103 U.S.App.D.C. 207, 212-213, 257 F.2d 211, 216-217 (1958); International Union, UMWA, 117 N.L.R.B. 1095, 1118 (1957) (Intermediate Report of Trial Examiner, reprinted as an appendix to NLRB opinion).8 The new provision in the 1952 contract, which was carried forward into the 1968 and 1971 contracts essentially unchanged as to this issue, read as follows: 19 "The United Mine Workers of America and the Operators agree and affirm that they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the 'Settlement of Local and District Disputes' section of the Agreement unless national in character in which event the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract provided and by collective bargaining without recourse to the courts." 20 It makes no sense to assume that the parties thought the new language subsumed the deleted provision. Had that been their intention, there would have been no reason to alter the contract. 21 The inescapable conclusion to be drawn from their bargaining history is that, whatever the integrity clause may mean,9 the parties purposely decided not to impose on the union an obligation to take disciplinary or other actions to get unauthorized strikers back to work. It would do violence to the bargaining process and the national policy furthering free collective bargaining to impose by judicial implication a duty upon UMWA and District 17 that the parties in arm's-length bargaining first included and then purposely deleted. 22 Moreover, since the deletion but before 1968 or 1971 when these agreements were reached, two Courts of Appeals construed this contract as not imposing liability on the union for wildcat strikes and as not requiring UMWA to take any action with regard to such strikes. Lewis v. Benedict Coal Corp., 259 F.2d 346, 351 (CA6 1958) (Stewart, J.), aff'd by an equally divided Court, 361 U.S. 459, 464, 80 S.Ct. 489, 492, 4 L.Ed.2d 442 (1960); United Construction Workers v. Haislip Baking Co., 223 F.2d, at 877.10 If these interpretations did not accord with the parties' understanding of their contract, they had ample opportunity to make their own understanding explicit. Failure to do so strongly suggests the parties incorporated the courts' interpretation of the agreements. 23 Affirmed. 1 The facts relevant to the participation of the District and International in the wildcat strikes can be briefly stated. As recently as 1966 the International expressed its intention to discipline "wildcatters." The District and International were promptly notified of each strike. In each instance, a District representative arranged for a meeting of the striking local and directed the members to return to work. Often the representative advised the members that the International and the District could take disciplinary action against participants in illegal, unauthorized strikes. If the strike did not end after the first meeting a second meeting was called. Most strikes ended in the first one or two days. No strike lasted longer than six days. From concern that such action might only aggravate a bad situation, no disciplinary action was taken against the strikers. There is however no suggestion that the District's efforts to end the strikes were not in good faith. 2 The contracts have expired, and the question of injunctive relief is out of the case. 3 Review of the judgments against the locals was not sought here. 4 Accord, Republic Steel Corp. v. UMWA, 570 F.2d 467 (CA3 1978); Bituminous Coal Operators v. UMWA, 585 F.2d 586 (CA3 1978); United States Steel Corp. v. UMWA, 534 F.2d 1063 (CA3 1976); Wagner Elec. Corp. v. Local 1104, Electrical Workers, 496 F.2d 954 (CA8 1974). Contra, Southern Ohio Coal Co. v. UMWA, 551 F.2d 695 (CA6 1977). 5 An international union, of course, is responsible under § 301 for any authorized strike if such strike violates any term of the contract, whether express or implied. See, e. g., Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974); Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Our holding in Part A of this opinion does not affect the content, as implied by law, of arbitration clauses. Rather, we are addressing the wholly different issue of whether an international or district union may be held legally responsible for locals' unilateral actions which are concededly in violation of the locals' responsibilities under the contract. 6 At the same time, Congress applied to unions the common-law doctrine of respondeat superior rather than the more restrictive test of union responsibility under § 6 of the Norris-LaGuardia Act, which requires "clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof." 29 U.S.C. § 106 (emphasis supplied). 7 The full text of this new provision read: "The United Mine Workers of America and the Operators signatory hereto affirm their intention to maintain the integrity of this contract and to exercise their best efforts through available disciplinary measures to prevent stoppages of work by strike or lockout pending adjustment or adjudication of disputes and grievances in the manner provided in this agreement." 8 Contrary to petitioner's suggestion, the Trial Examiner's opinion, which was affirmed by the Labor Board but set aside by the Court of Appeals, does not present an inconsistent interpretation of the bargaining history on this point. Although the Trial Examiner gave more importance to the retention of the integrity clause than to the deletion of the best-efforts clause, he did so in the discrete context of deciding whether or not there was an implied agreement not to strike. The issue of what obligation, if any, the union owed to try to get the miners back to work was not before the Board. Consequently, the importance of the best-efforts language was properly minimized. In fact, the Trial Examiner's interpretation of the contract appears to reject, rather than support, petitioner's suggested reading concerning the damages liability of UMWA for wildcat strikes. He stated that the contract and the bargaining history suggested that "the contracting parties may have intended that no breach of contract damage or other suits resulting from strikes should be lodged in courts of law." 117 N.L.R.B., at 1115. This suit seeks damages in a court of law on the basis of a breach of contract resulting from a strike. 9 We need not decide what content the "integrity" clause has since we have determined that it does not support petitioner's cause of action. The District of Columbia Circuit has suggested one possible meaning, International Union, UMWA v. NLRB, 103 U.S.App.D.C. 207, 214, 257 F.2d 211, 218 (1958). 10 Since 1971 the Seventh Circuit has adopted the same reading of this contract. Old Ben Coal Corp. v. Local Union No. 1487, United Mine Workers, 457 F.2d 162, 164 (1972). Only the Third Circuit has read this provision differently. United States Steel Corp. v. UMWA, 534 F.2d, at 1072-1073.

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444 U.S. 223 100 S.Ct. 497 62 L.Ed.2d 433 STRYCKER'S BAY NEIGHBORHOOD COUNCIL, INC.v.Roland N. KARLEN et al. CITY OF NEW YORK v. Roland N. KARLEN et al. SECRETARY OF HOUSING AND URBAN DEVELOPMENT v. Roland N. KARLEN et al. Nos. 79-168, 79-181, and 79-184. Jan. 7, 1980. PER CURIAM. 1 The protracted nature of this litigation is perhaps best illustrated by the identity of the original federal defendant, "George Romney, Secretary of the Department of Housing and Urban Development." At the center of this dispute is the site of a proposed low-income housing project to be constructed on Manhattan's Upper West Side. In 1962, the New York City Planning Commission (Commission), acting in conjunction with the United States Department of Housing and Urban Development (HUD), began formulating a plan for the renewal of 20 square blocks known as the "West Side Urban Renewal Area" (WSURA) through a joint effort on the part of private parties and various government agencies. As originally written, the plan called for a mix of 70% middle-income housing and 30% low-income housing and designated the site at issue here as the location of one of the middle-income projects. In 1969, after substantial progress toward completion of the plan, local agencies in New York determined that the number of low-income units proposed for WSURA would be insufficient to satisfy an increased need for such units. In response to this shortage the Commission amended the plan to designate the site as the future location of a high-rise building containing 160 units of low-income housing. HUD approved this amendment in December 1972. 2 Meanwhile, in October 1971, the Trinity Episcopal School Corp. (Trinity), which had participated in the plan by building a combination school and middle-income housing development at a nearby location, sued in the United States District Court for the Southern District of New York to enjoin the Commission and HUD from constructing low-income housing on the site. The present respondents, Roland N. Karlen, Alvin C. Hudgins, and the Committee of Neighbors To Insure a Normal Urban Environment (CONTINUE), intervened as plaintiffs, while petitioner Strycker's Bay Neighborhood Council, Inc., intervened as a defendant. 3 The District Court entered judgment in favor of petitioners. See Trinity Episcopal School Corp. v. Romney, 387 F.Supp. 1044 (1974). It concluded, inter alia, that petitioners had not violated the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq. 4 On respondents' appeal, the Second Circuit affirmed all but the District Court's treatment of the NEPA claim. See Trinity Episcopal School Corp. v. Romney, 523 F.2d 88 (1975). While the Court of Appeals agreed with the District Court that HUD was not required to prepare a full-scale environmental impact statement under § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), it held that HUD had not complied with § 102(2)(E),1 which requires an agency to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E). See 523 F.2d., at 92-95. According to the Court of Appeals, any consideration by HUD of alternatives to placing low-income housing on the site "was either highly limited or nonexistent." Id., at 94. Citing the "background of urban environmental factors" behind HUD's decision, the Court of Appeals remanded the case, requiring HUD to prepare a "statement of possible alternatives, the consequences thereof and the facts and reasons for and against . . . ." Ibid. The statement was not to reflect "HUD's concept or the Housing Authority's views as to how these agencies would choose to resolve the city's low income group housing situation," but rather was to explain "how within the framework of the Plan its objective of economic integration can best be achieved with a minimum of adverse environmental impact." Ibid. The Court of Appeals believed that, given such an assessment of alternatives, "the agencies with the cooperation of the interested parties should be able to arrive at an equitable solution." Id., at 95. 5 On remand, HUD prepared a lengthy report entitled Special Environmental Clearance (1977). After marshaling the data, the report asserted that, "while the choice of Site 30 for development as a 100 percent low-income project has raised valid questions about the potential social environmental impacts involved, the problems associated with the impact on social fabric and community structures are not considered so serious as to require that this component be rated as unacceptable." Special Environmental Clearance Report 42. The last portion of the report incorporated a study wherein the Commission evaluated nine alternative locations for the project and found none of them acceptable. While HUD's report conceded that this study may not have considered all possible alternatives, it credited the Commission's conclusion that any relocation of the units would entail an unacceptable delay of two years or more. According to HUD, "[m]easured against the environmental costs associated with the minimum two-year delay, the benefits seem insufficient to justify a mandated substitution of sites." Id., at 54. 6 After soliciting the parties' comments on HUD's report, the District Court again entered judgment in favor of petitioners. See Trinity Episcopal School Corp. v. Harris, 445 F.Supp. 204 (1978). The court was "impressed with [HUD's analysis] as being thorough and exhaustive," id., at 209-210, and found that "HUD's consideration of the alternatives was neither arbitrary nor capricious"; on the contrary, "[i]t was done in good faith and in full accordance with the law." Id., at 220. 7 On appeal, the Second Circuit vacated and remanded again. Karlen v. Harris, 590 F.2d 39 (1978). The appellate court focused upon that part of HUD's report where the agency considered and rejected alternative sites, and in particular upon HUD's reliance on the delay such a relocation would entail. The Court of Appeals purported to recognize that its role in reviewing HUD's decision was defined by the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), which provides that agency actions should be set aside if found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." Additionally, however, the Court of Appeals looked to "[t]he provisions of NEPA" for "the substantive standards necessary to review the merits of agency decisions . . . ." 590 F.2d, at 43. The Court of Appeals conceded that HUD had "given 'consideration' to alternatives" to redesignating the site. Id., at 44. Nevertheless, the court believed that " 'consideration' is not an end in itself." Ibid. Concentrating on HUD's finding that development of an alternative location would entail an unacceptable delay, the appellate court held that such delay could not be "an overriding factor" in HUD's decision to proceed with the development. Ibid. According to the court, when HUD considers such projects, "environmental factors, such as crowding low-income housing into a concentrated area, should be given determinative weight." Ibid. The Court of Appeals therefore remanded the case to the District Court, instructing HUD to attack the shortage of low-income housing in a manner that would avoid the "concentration" of such housing on Site 30. Id., at 45. 8 In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978), we stated that NEPA, while establishing "significant substantive goals for the Nation," imposes upon agencies duties that are "essentially procedural." As we stressed in that case, NEPA was designed "to insure a fully informed and well-considered decision," but not necessarily "a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency." Ibid. Vermont Yankee cuts sharply against the Court of Appeals' conclusion that an agency, in selecting a course of action, must elevate environmental concerns over other appropriate considerations. On the contrary, once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot " 'interject itself within the area of discretion of the executive as to the choice of the action to be taken.' " Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576 (1976). See also FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 96 S.Ct. 579, 46 L.Ed.2d 533 (1976).2 9 In the present litigation there is no doubt that HUD considered the environmental consequences of its decision to redesignate the proposed site for low-income housing. NEPA requires no more. The petitions for certiorari are granted, and the judgment of the Court of Appeals is therefore 10 Reversed. 11 Mr. Justice MARSHALL, dissenting. 12 The issue raised by these cases is far more difficult than the per curiam opinion suggests. The Court of Appeals held that the Secretary of Housing and Urban Development (HUD) had acted arbitrarily in concluding that prevention of a delay in the construction process justified the selection of a housing site which could produce adverse social environmental effects, including racial and economic concentration. Today the majority responds that "once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences," and that in this case "there is no doubt that HUD considered the environmental consequences of its decision to redesignate the proposed site for low-income housing. NEPA requires no more." The majority finds support for this conclusion in the closing paragraph of our decision in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). 13 Vermont Yankee does not stand for the broad proposition that the majority advances today. The relevant passage in that opinion was meant to be only a "further observation of some relevance to this case," id., at 557, 98 S.Ct., at 1218. That "observation" was a response to this Court's perception that the Court of Appeals in that case was attempting "under the guise of judicial review of agency action" to assert its own policy judgment as to the desirability of developing nuclear energy as an energy source for this Nation, a judgment which is properly left to Congress. Id., at 558, 98 S.Ct., at 1219. The Court of Appeals had remanded the case to the agency because of "a single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below," ibid. It was in this context that the Court remarked that "NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural." Ibid. (emphasis supplied). Accordingly, "[a]dministrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute," ibid. (emphasis supplied). Thus Vermont Yankee does not stand for the proposition that a court reviewing agency action under NEPA is limited solely to the factual issue of whether the agency "considered" environmental consequences. The agency's decision must still be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), and the reviewing court must still insure that the agency "has taken a 'hard look' at environmental consequences," Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576 (1976). 14 In the present case, the Court of Appeals did not "substitute its judgment for that of the agency as to the environmental consequences of its actions," ibid., for HUD in its Special Environmental Clearance Report acknowledged the adverse environmental consequences of its proposed action: "the choice of Site 30 for development as a 100 percent low-income project has raised valid questions about the potential social environmental impacts involved." These valid questions arise from the fact that 68% of all public housing units would be sited on only one crosstown axis in this area of New York City. As the Court of Appeals observed, the resulting high concentration of low-income housing would hardly further racial and economic integration. The environmental "impact . . . on social fabric and community structures" was given a B rating in the report, indicating that from this perspective the project is "questionable" and ameliorative measures are "mandated." The report lists 10 ameliorative measures necessary to make the project acceptable. The report also discusses two alternatives, Sites 9 and 41, both of which are the appropriate size for the project and require "only minimal" amounts of relocation and clearance. Concerning Site 9 the report explicitly concludes that "[f]rom the standpoint of social environmental impact, this location would be superior to Site 30 for the development of low-rent public housing." The sole reason for rejecting the environmentally superior site was the fact that if the location were shifted to Site 9, there would be a projected delay of two years in the construction of the housing. 15 The issue before the Court of Appeals, therefore, was whether HUD was free under NEPA to reject an alternative acknowledged to be environmentally preferable solely on the ground that any change in sites would cause delay. This was hardly a "peripheral issue" in the case. Whether NEPA, which sets forth "significant substantive goals," Vermont Yankee Nuclear Power Corp. v. NRDC, supra, 435 U.S., at 558, 98 S.Ct., at 1219, permits a projected two-year time difference to be controlling over environmental superiority is by no means clear. Resolution of the issue, however, is certainly within the normal scope of review of agency action to determine if it is arbitrary, capricious, or an abuse of discretion.* The question whether HUD can make delay the paramount concern over environmental superiority is essentially a restatement of the question whether HUD in considering the environmental consequences of its proposed action gave those consequences a "hard look," which is exactly the proper question for the reviewing court to ask. Kleppe v. Sierra Club, supra, 427 U.S., at 410, n. 21, 96 S.Ct., at 2730, n. 21. 16 The issue of whether the Secretary's decision was arbitrary or capricious is sufficiently difficult and important to merit plenary consideration in this Court. Further, I do not subscribe to the Court's apparent suggestion that Vermont Yankee limits the reviewing court to the essentially mindless task of determining whether an agency "considered" environmental factors even if that agency may have effectively decided to ignore those factors in reaching its conclusion. Indeed, I cannot believe that the Court would adhere to that position in a different factual setting. Our cases establish that the arbitrary-or-capricious standard prescribes a "searching and careful" judicial inquiry designed to ensure that the agency has not exercised its discretion in an unreasonable manner. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Believing that today's summary reversal represents a departure from that principle, I respectfully dissent. 17 It is apparent to me that this is not the type of case for a summary disposition. We should at least have a plenary hearing. 1 At the time of the Court of Appeals' decision, this section was numbered 102(2)(D) and was codified at 42 U.S.C. § 4332(2)(D) (1970 ed.). Congress redesignated it two weeks later. See Act of Aug. 9, 1975, Pub.L. 94-83, 89 Stat. 424. 2 If we could agree with the dissent that the Court of Appeals held that HUD had acted "arbitrarily" in redesignating the site for low-income housing, we might also agree that plenary review is warranted. But the District Court expressly concluded that HUD had not acted arbitrarily or capriciously and our reading of the opinion of the Court of Appeals satisfies us that it did not overturn that finding. Instead, the appellate court required HUD to elevate environmental concerns over other, admittedly legitimate, considerations. Neither NEPA nor the APA provides any support for such a reordering of priorities by a reviewing court. * The Secretary concedes that if an agency gave little or no weight to environmental values its decision might be arbitrary or capricious. Pet. for Cert. in No. 79-184, p. 15, n. 16.

89

62 L.Ed.2d 441 100 S.Ct. 502 444 U.S. 232 James Jefferson McLAIN et al., Petitioners,v.REAL ESTATE BOARD OF NEW ORLEANS, INC., et al. No. 78-1501. Argued Nov. 6, 1979. Decided Jan. 8, 1980. Syllabus Petitioners, claiming individually and on behalf of a certain class of real estate purchasers and sellers, instituted this private antitrust action in Federal District Court against respondents, certain real estate firms and trade associations and a class consisting of real estate brokers who had transacted realty brokerage business in the Greater New Orleans area during the four years preceding the filing of the complaint. Petitioners alleged, inter alia, that respondents had engaged in a price-fixing conspiracy in violation of § 1 of the Sherman Act through an agreement to conform to a fixed rate of brokerage commissions on sales of residential property. The complaint also included allegations that respondents' activities were "within the flow of interstate commerce and have an effect upon that commerce," and that respondents assisted their clients in securing financing and title insurance which came from sources outside the State. Respondents moved to dismiss the complaint for failure to state a claim under the Sherman Act, contending that their activities were purely local in nature and did not substantially affect interstate commerce. The District Court granted the motion to dismiss the complaint, holding that under Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572, there must be a substantial volume of interstate commerce involved in the overall real estate transaction and the challenged activity must be an essential, integral part of the transaction, inseparable from its interstate aspects; and that here a broker's participation in the presumably interstate aspects of securing title insurance and financing was only incidental rather than indispensable. The Court of Appeals affirmed, holding that under Goldfarb v. Virginia State Bar, supra, Sherman Act jurisdiction did not exist because petitioners had failed to demonstrate that real estate brokers are either necessary or integral participants in the interstate aspects of residential real estate financing and title insurance. Held: The complaint should not have been dismissed at this stage of the proceedings. Pp. 241-247. (a) To establish jurisdiction under the Sherman Act, a plaintiff must allege the relationship between the activity involved and some aspect of interstate commerce and, if these allegations are controverted, must submit evidence to demonstrate either that the defendants' activity is itself in interstate commerce or, if it is local in nature, that it has an effect on some other appreciable activity demonstrably in interstate commerce. Here, petitioners may establish the jurisdictional element of a Sherman Act violation by demonstrating a substantial effect on interstate commerce generated by respondents' brokerage activity, and petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents' activity that are alleged to be unlawful. Pp. 241-243. (b) The courts below misinterpreted Goldfarb v. Virginia State Bar, supra, as requiring that petitioners demonstrate that real estate brokers are either necessary or integral participants in the interstate aspects of residential real estate financing and title insurance. The Goldfarb holding was not addressed to the "effect on commerce" test of jurisdiction and in no way restricted it to those challenged activities that have an integral relationship to an activity in interstate commerce. Pp. 243-245. (c) Here, what was submitted to the District Court shows a sufficient basis for satisfying the Act's jurisdictional requirements under the "effect on commerce" theory so as to entitle petitioners to go forward. The record makes it clear that there is a basis for petitioners to proceed to trial where there will be opportunity to establish that an appreciable amount of commerce is involved in the financing of residential property in the Greater New Orleans area and in the insuring of titles to such property, that this appreciable commercial activity has occurred in interstate commerce, and that respondents' activities which allegedly have been infected by a price-fixing conspiracy have, as a matter of practical economics, a not insubstantial effect on the interstate commerce involved. Pp. 245-247. 583 F.2d 1315, vacated and remanded. Richard G. Vinet, New Orleans, La., for petitioners. Frank H. Easterbrook, Washington, D. C., for the U. S., as amicus curiae, by special leave of Court. Harry McCall, Jr., New Orleans, La., for respondents. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 The question in this case is whether the Sherman Act extends to an agreement among real estate brokers in a market area to conform to a fixed rate of brokerage commissions on sales of residential property. 2 * The complaint in this private antitrust action, filed in the Eastern District of Louisiana in 1975, alleges that real estate brokers in the Greater New Orleans area have engaged in a price-fixing conspiracy in violation of § 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U.S.C. § 1. No trial has as yet been had on the merits of the claims since the complaint was dismissed for failure to establish the interstate commerce component of the Sherman Act jurisdiction. 3 The complaint asserts a claim individually and on behalf of that class of persons who employed the services of a respondent real estate broker in the purchase or sale of residential property in the Louisiana parishes of Jefferson or Orleans (the Greater New Orleans area) during the four years preceding the filing of the complaint. The respondents are two real estate trade associations, six named real estate firms, and that class of real estate brokers who at some time during the period covered by the complaint transacted realty brokerage business in the Greater New Orleans area and charged a brokerage fee for their services. The unlawful conduct alleged is a continuing combination and conspiracy among the respondents to fix, control, raise, and stabilize prices for the purchase and sale of residential real estate by the systematic use of fixed commission rates, widespread fee splitting, suppression of market information useful to buyers and sellers, and other allegedly anticompetitive practices. The complaint asserts that respondents' conduct has injured petitioners in their business or property because the fees and commissions charged for brokerage services have been maintained at an artificially high and noncompetitive level, with the effect that the prices of residential properties have been artificially raised. The complaint seeks treble damages and injunctive relief as authorized by §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U.S.C. §§ 15, 26. 4 The allegations of the complaint pertinent to establishing federal jurisdiction are: 5 (1) that the activities of the respondents are "within the flow of interstate commerce and have an effect upon that commerce"; 6 (2) that the services of respondents were employed in connection with the purchase and sale of real estate by "persons moving into and out of the Greater New Orleans area"; 7 (3) that respondents "assist their clients in securing financing and insurance involved with the purchase of real estate in the Greater New Orleans area," which "financing and insurance are obtained from sources outside the State of Louisiana and move in interstate commerce into the State of Louisiana through the activities of the [respondents]"; and (4) that respondents have engaged in an unlawful restraint of "interstate trade and commerce in the offering for sale and sale of real estate brokering services." 8 Respondents moved in the District Court to dismiss the complaint for failure to state a claim within the ambit of the Sherman Act. This motion was supported by a memorandum and by the affidavits of two officers of respondent Real Estate Board of New Orleans. The affiants testified that real estate brokers in Louisiana were licensed to perform their function in that State only, that there was no legal or other requirement that real estate brokers be employed in connection with the purchase or sale of real estate within Louisiana, and that the affiants had personal knowledge of such transactions occurring without the assistance of brokers. The function of real estate brokers was described as essentially completed when buyer and seller had been brought together on agreeable terms. The affiants also stated that real estate brokers did not obtain and were not instrumental in obtaining financing of credit sales, save in a few special cases, nor were they involved with examination of titles in connection with the sale of real estate or the financing of such sales. 9 The memorandum in support of the motion to dismiss sought to distinguish this case from Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), in which we held that § 1 of the Sherman Act had been violated by conformance with a bar association's minimum-fee schedule that established fees for title examination services performed by attorneys in connection with the financing of real estate purchases. The respondents construed the applicability of Goldfarb as limited by certain language in the opinion that described the activities of lawyers in the examination of titles as an inseparable and integral part of the interstate commerce in real estate financing. 421 U.S., at 784-785, 95 S.Ct., at 2011-2012. In contrast, with respect to this case, respondents asserted on the basis of the affidavits that "the role of . . . real estate brokers in financing such purchases is neither integral nor inseparable." Respondents contended (1) that the activities of respondent real estate brokers were purely local in nature; (2) that the allegation that respondents assisted in securing financing or insurance in connection with the purchase of real estate had been controverted by the affidavits; and (3) that the conclusory assertion in the complaint that respondents' activities "are within the flow of interstate commerce and have an effect upon that commerce" was insufficient by itself to establish federal jurisdiction. 10 Petitioners' response to the motion to dismiss asserted that since adequate pretrial discovery up to that time had been precluded pursuant to a pretrial order, petitioners had not had a full opportunity to substantiate the jurisdictional allegations of their complaint. Petitioners advanced two independent theories to support federal jurisdiction: (1) that respondents' activities occurred within the stream of interstate commerce; and (2) that even if respondents' activities were wholly local in character they depended upon and affected the interstate flow of both services and people. 11 Accompanying the response was an affidavit stating that one of the named petitioners had employed the services of a respondent real estate broker to assist in an interstate relocation. There was also an affidavit from a loan guarantee officer of the Veterans' Administration disclosing that VA-insured loans for residential purchases in the Greater New Orleans area for the years 1973-1975 amounted to $46.3 million, $45.9 million, and $53.5 million, respectively. 12 After briefing on the jurisdictional issue, the District Court hard oral argument and received postargument briefs. The court then held a conference with counsel, the substance of which was carefully recorded in the minute entries by the District Judge: 13 "The Court advised counsel that it appears plaintiffs may satisfy said jurisdictional requirement only by bringing the facts of this case within the parameters of the Supreme Court's holding in Goldfarb v. Virginia State Bar. . . . It is recognized, however, that further discovery is needed on the issue of Goldfarb's applicability sub judice. More specifically, such discovery should determine whether, in the first place, there is the requisite interdependence between the brokerage activity of defendants and the financing and/or insuring of real estate transactions in the New Orleans area and, secondly, whether there is a substantial involvement of interstate commerce in such real estate transactions via the financing and/or insurance aspects thereof." 14 Following this conference, petitioners deposed nine witnesses, who produced various documents. The deponents included government officials, real estate brokers, mortgage lenders, and real estate title insurers. This evidence was directed to establishing that an appreciable amount of interstate commerce was involved in various aspects of the purchase and sale of residential property in the Greater New Orleans area. 15 The deposition testimony of the president of Security Homestead Association, one of nearly 40 savings and loan institutions in the Greater New Orleans area, revealed that during the period covered by the complaint the Association lent in excess of $100 million for local purchases of residential property. The Association obtained local capital from deposits by investors, some of whom lived out of state, and from borrowings from the Federal Home Loan Bank of Little Rock, Ark. Toward the close of the relevant period, the Association entered the interstate secondary mortgage market, in which existing mortgages were sold to raise new capital for future loans. 16 Another deponent was the president of Carruth Mortgage Corp., an Arkansas corporation doing business in Louisiana, Mississippi, and Texas. Its business was to originate home loans, then to sell the financial paper in the secondary mortgage market. The testimony showed that during the relevant period Carruth made in excess of $100 million in loans on residential real estate in the Greater New Orleans area. The overwhelming proportion of these home loans was guaranteed by either the Federal Housing Administration or the Veterans' Administration. With respect to the FHA-guaranteed loans, Carruth collected and remitted premiums for the guarantee to the FHA in Washington, D. C., on a periodic basis for each account. 17 Both deponents testified that real estate brokers often play a role in securing financing information on behalf of a borrower and in bringing borrower and lender together, but that after the introductory phases the substance of the mortgage transaction progressed without the involvement of a real estate broker. The president of Carruth testified that his company required title insurance on all the home loans it made. This testimony was accompanied by the deposition of the president of Lawyers Title Insurance Co. of Louisiana, which revealed that each of the nearly 30 title insurance companies then writing coverage in the Greater New Orleans area was a subsidiary or branch of a corporation in another state. 18 Following the close of the discovery period and the filing of additional briefs, the District Court took the matter under submission and, having considered the memoranda of counsel and the relevant documents of record, issued a memorandum opinion and order granting the motion to dismiss the complaint. 432 F.Supp. 982 (1977). The court stated that the ground upon which respondents had challenged jurisdiction was that "brokerage activities are wholly intrastate in nature and, since they neither occur in nor substantially affect interstate commerce, are beyond the ambit of federal anti-trust prohibition." Id., at 983. In line with the view expressed at the earlier conference, see supra, at 237-238, the District Court viewed the jurisdictional inquiry as narrowly confined: the question was whether the facts of this case could be brought within the Goldfarb holding. In the District Court's view, "any inquiry based upon [Goldfarb ] must be twofold: 1) whether a 'substantial' volume of interstate commerce is involved in the overall real estate transaction, and 2) whether the challenged activity is an essential, integral part of the transaction and inseparable from its interstate aspects." 432 F.Supp., at 984. The District Court assumed, arguendo, that the tile insurance and financing aspects of the New Orleans residential real estate market were interstate in character, but ruled that federal jurisdiction was not established because in its view "the inescapable conclusion to be drawn from the evidence is that the participation of the broker in these (presumably interstate) phases of the real estate transaction is an incidental rather than indispensable occurrence in the transactional chain of events." Id., at 985. 19 The United States Court of Appeals for the Fifth Circuit affirmed the dismissal of the complaint. 583 F.2d 1315 (1978). Examining first the specific acts complained of in this case, the Court of Appeals concluded that they failed to satisfy the "in commerce" test. Realty was viewed as a quintessentially local product, and the brokerage activity described in the pleadings was found to occur wholly intrastate. Id., at 1319. Second, that court rejected petitioners' "effect on commerce" argument. The interpretation of Goldfarb that had guided the District Court's analysis was adopted by the Court of Appeals, which ruled that "unlike the attorneys in Goldfarb whose participation in title insurance was statutorily mandated, real estate brokers are neither necessary nor integral participants in the 'interstate aspects' of realty financing and insurance." 583 F.2d, at 1321-1323. 20 The Court of Appeals noted that the District Court had styled its judgment as a dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted, to be treated as a summary judgment insofar as matters outside of the pleadings were considered. The Court of Appeals concluded that the appropriate designation of the dismissal was for lack of subject-matter jurisdiction under Rule 12(b)(1), and affirmed the dismissal on that basis. 21 We granted certiorari. 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1043. II A. 22 The broad authority of Congress under the Commerce Clause has, of course, long been interpreted to extend beyond activities actually in interstate commerce to reach other activities, while wholly local in nature, nevertheless substantially affect interstate commerce. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). This Court has often noted the correspondingly broad reach of the Sherman Act. Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 743, 96 S.Ct. 1848, 1851, 48 L.Ed.2d 338 (1976); United States v. Employing Plasterers' Assn., 347 U.S. 186, 189, 74 S.Ct. 452, 454, 98 L.Ed. 618 (1954); United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 558, 64 S.Ct. 1162, 1176, 88 L.Ed. 1440 (1944); Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 435, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932). During the near century of Sherman Act experience, forms and modes of business and commerce have changed along with changes in communication and travel, and innovations in methods of conducting particular businesses have altered relationships in commerce. Application of the Act reflects an adaptation to these changing circumstances. Compare United States v. E. C. Knight Co., 156 U.S. 1, 12-15, 15 S.Ct. 249, 253-255, 39 L.Ed. 325 (1895), and Hopkins v. United States, 171 U.S. 578, 587-592, 19 S.Ct. 40, 43-45, 43 L.Ed. 290 (1898), with Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 231-235, 68 S.Ct. 996, 1003-1006, 92 L.Ed. 1328 (1948), and United States v. Employing Plasterers Assn., supra, 347 U.S., at 189, 74 S.Ct., at 454. 23 The conceptual distinction between activities "in" interstate commerce and those which "affect" interstate commerce has been preserved in the cases, for Congress has seen fit to preserve that distinction in the antitrust and related laws by limiting the applicability of certain provisions to activities demonstrably "in commerce." United States v. American Building Maintenance Industries, 422 U.S. 271, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974); FTC v. Bunte Bros., Inc., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881 (1941). It can no longer be doubted, however, that the jurisdictional requirement of the Sherman Act may be satisfied under either the "in commerce" or the "effect on commerce" theory. Hospital Building Co. v. Rex Hospital Trustees, supra, 425 U.S., at 743, 96 S.Ct., at 1851; Gulf Oil Corp. v. Copp Paving Co., supra, 419 U.S., at 194-195, 95 S.Ct., at 398-399; United States v. Women's Sportswear Manufacturers Assn., 336 U.S. 460, 464, 69 S.Ct. 714, 716, 93 L.Ed. 805 (1949); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., supra, 334 U.S., at 235-237, 68 S.Ct., at 1005-1007. 24 Although the cases demonstrate the breadth of Sherman Act prohibitions, jurisdiction may not be invoked under that statute unless the relevant aspect of interstate commerce is identified; it is not sufficient merely to rely on identification of a relevant local activity and to presume an interrelationship with some unspecified aspect of interstate commerce. To establish jurisdiction a plaintiff must allege the critical relationship in the pleadings and if these allegations are controverted must proceed to demonstrate by submission of evidence beyond the pleadings either that the defendants' activity is itself in interstate commerce or, if it is local in nature, that it has an effect on some other appreciable activity demonstrably in interstate commerce. Gulf Oil Corp. v. Copp Paving Co., supra, 419 U.S., at 202, 95 S.Ct., at 402. 25 To establish the jurisdictional element of a Sherman Act violation it would be sufficient for petitioners to demonstrate a substantial effect on interstate commerce generated by respondents' brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents' activity thatare alleged to be unlawful. The validity of this approach is confirmed by an examination of the case law. If establishing jurisdiction required a showing that the unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the alleged restraint failed to have its intended anticompetitive effect. This is not the rule of our cases. See American Tobacco Co. v. United States, 328 U.S. 781, 811, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 225, n. 59, 60 S.Ct. 811, 846, 84 L.Ed. 1129 (1940). A violation may still be found in such circumstances because in a civil action under the Sherman Act, liability may be established by proof of either an unlawful purpose or an anticompetitive effect. United States v. United States Gypsum Co., 438 U.S. 422, 436, n. 13, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978); see United States v. Container Corp., 393 U.S. 333, 337, 89 S.Ct. 510, 512, 21 L.Ed.2d 526 (1969); United States v. National Assn. of Real Estate Boards, 339 U.S. 485, 489, 70 S.Ct. 711, 714, 94 L.Ed. 1007 (1950); United States v. Socony-Vacuum Oil Co., supra, 310 U.S., at 224-225, n. 59, 60 S.Ct., at 844-846. 26 Nor is jurisdiction defeated in a case relying on anticompetitive effects by plaintiff's failure to quantify the adverse impact of defendant's conduct. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123-125, 89 S.Ct. 1562, 1576-1578, 23 L.Ed.2d 129 (1969); Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265-266, 66 S.Ct. 574, 580-581, 90 L.Ed. 652 (1946). Even where there is an inability to prove that concerted activity has resulted in legally cognizable damages, jurisdiction need not be impaired, though such a failure may confine the available remedies to injunctive relief. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 452-463, 65 S.Ct. 716, 723-729, 89 L.Ed. 1051 (1945); Keogh v. Chicago & N. W. R. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922). B 27 The interpretation and application of our holding in Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), has figured prominently in this case. The District Court held that petitioners could establish federal jurisdiction only if the facts of this case could be brought within Goldfarb. As previously noted, as interpreted by that court, "any inquiry based upon [Goldfarb ] must be twofold: 1) whether a 'substantial' volume of interstate commerce is involved in the overall real estate transaction, and, 2) whether the challenged activity is an essential, integral part of the transaction and inseparable from its interstate aspects." 432 F.Supp., at 984. The Court of Appeals took a similar view of Goldfarb, holding that Sherman Act jurisdiction did not exist because petitioners had failed to demonstrate that real estate brokers are either necessary or integral participants in the interstate aspects of residential real estate financing and title insurance. 583 F.2d, at 1322. 28 It is with the second phase of the analysis of the District Court and of the Court of Appeals that we disagree. The facts of Goldfarb revealed an application of the state bar association's minimum-fee schedule to fix fees for attorneys' title examination services. Since the financing depended on a valid and insured title we concluded that title examination was "an integral part" of the interstate transaction of obtaining financing for the purchase of residential property and, because of the "inseparability" of the attorneys' services from the title examination process, we held that the legal services were in turn an "integral part of an interstate transaction." 421 U.S., at 784-785, 95 S.Ct., at 2011-2012. By placing the Goldfarb holding on the available ground that the activities of the attorneys were within the stream of interstate commerce, Sherman Act jurisdiction was established. The Goldfarb holding was not addressed to the "effect on commerce" test of jurisdiction and in no way restricted it to those challenged activities that have an integral relationship to an activity in interstate commerce. To adopt the restrictive interpretation urged upon us by respondents would return to a jurisdictional analysis under the Sherman Act of an era long past. It has been more than 30 years since this Court stated: "At this late day we are not willing to take that long backward step." Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S., at 235, 68 S.Ct., at 1005. C 29 On the record thus far made, it cannot be said that there is an insufficient basis for petitioners to proceed at trial to establish Sherman Act jurisdiction. It is clear that an appreciable amount of commerce is involved in the financing of residential property in the Greater New Orleans area and in the insuring of titles to such property. The presidents of two of the many lending institutions in the area stated in their deposition testimony that those institutions committed hundreds of millions of dollars to residential financing during the period covered by the complaint. The testimony further demonstrates that this appreciable commercial activity has occurred in interstate commerce. Funds were raised from out-of-state investors and from interbank loans obtained from interstate financial institutions. Multistate lending institutions took mortgages insured under federal programs which entailed interstate transfers of premiums and settlements. Mortgage obligations physically and constructively were traded as financial instruments in the interstate secondary mortgage market. Before making a mortgage loan in the Greater New Orleans area, lending institutions usually, if not always, required title insurance, which was furnished by interstate corporations. Reading the pleadings, as supplemented, most favorably to petitioners, for present purposes we take these facts as established. 30 At trial, respondents will have the opportunity, if they so choose, to make their own case contradicting this factual showing. On the other hand, it may be possible for petitioners to establish that, apart from the commerce in title insurance and real estate financing, an appreciable amount of interstate commerce is involved with the local residential real estate market arising out of the interstate movement of people, or otherwise. 31 To establish federal jurisdiction in this case, there remains only the requirement that respondents' activities which allegedly have been infected by a price-fixing conspiracy be shown "as a matter of practical economics" to have a not insubstantial effect on the interstate commerce involved. Hospital Building Co. v. Rex Hospital Trustees, supra, 425 U.S., at 745, 96 S.Ct., at 1852; see Goldfarb v. Virginia State Bar, supra, 421 U.S., at 784, n. 11, 95 S.Ct., at 2011; Burke v. Ford, 389 U.S. 320, 321-322, 88 S.Ct. 443, 444, 19 L.Ed.2d 554 (1967). It is clear, as the record shows, that the function of respondent real estate brokers is to bring the buyer and seller together on agreeable terms. For this service the broker charges a fee generally calculated as a percentage of the sale price. Brokerage activities necessarily affect both the frequency and the terms of residential sales transactions. Ultimately, whatever stimulates or retards the volume of residential sales, or has an impact on the purchase price, affects the demand for financing and title insurance, those two commercial activities that on this record are shown to have occurred in interstate commerce. Where, as here, the services of respondent real estate brokers are often employed in transactions in the relevant market, petitioners at trial may be able to show that respondents' activities have a not insubstantial effect on interstate commerce. 32 It is axiomatic that a complaint should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); see 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1202, 1205-1207, 1215-1224, 1228 (1969). This rule applies with no less force to a Sherman Act claim, where one of the requisites of a cause of action is the existence of a demonstrable nexus between the defendants' activity and interstate commerce. Here, what was submitted to the District Court shows a sufficient basis for satisfying the Act's jurisdictional requirements under the effect-on-commerce theory so as to entitle the petitioners to go forward. We therefore conclude that it was error to dismiss the complaint at this stage of the proceedings. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. 33 Vacated and remanded. 34 Mr. Justice MARSHALL took no part in the consideration or decision of this case.

78

444 U.S. 248 100 S.Ct. 512 62 L.Ed.2d 457 Roger Dale THOMPSONv.UNITED STATES. No. 79-5180. Jan. 14, 1980. PER CURIAM. 1 The Department of Justice has a firmly established policy, known as the "Petite " policy, under which United States Attorneys are forbidden to prosecute any person for allegedly criminal behavior if the alleged criminality was an ingredient of a previous state prosecution against that person. An exception is made only if the federal prosecution is specifically authorized in advance by the Department itself, upon a finding that the prosecution will serve "compelling interests of federal law enforcement."1 2 In this case the Solicitor General has advised us that this established Department policy was violated. Accordingly, he urges the Court "to permit the effectuation of the government's policy against successive prosecutions by granting the petition, vacating the judgment of the court of appeals, and remanding the case to the district court with instructions to grant the government's motion to dismiss the indictment." 3 In 1978, the petitioner was brought to trial in a Kentucky court on a charge of armed burglary, and was convicted by a jury of a lesser included offense. He was then prosecuted and convicted in a Federal District Court on a charge of unlawfully possessing a firearm—a charge that grew out of the same criminal transaction that had been the basis of the Kentucky prosecution. This federal conviction was affirmed by the Court of Appeals for the Sixth Circuit, which accepted the Government's then position that the "Petite " policy had not been violated.2 4 The Solicitor General now concedes that the United States Attorney did not obtain the authorization required under the established Department policy before bringing the federal prosecution. Moreover, "after careful review" of whether to grant nunc pro tunc authorization, the Solicitor General has concluded that "petitioner's prosecution for unlawfully possessing a firearm was not supported by an independent compelling federal interest not satisfied by the state prosecution for armed burglary." 5 Ever since the Justice Department established the "Petite " policy in 1959, the Court has consistently responded to requests by the Government in cases such as this by granting certiorari and vacating the judgments. See, e. g., Hammons v. United States, 439 U.S. 810, 99 S.Ct. 68, 58 L.Ed.2d 102 (1978); Frakes v. United States, 435 U.S. 911, 98 S.Ct. 1464, 55 L.Ed.2d 503 (1978); Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977); Croucher v. United States, 429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 744 (1977); Watts v. United States, 422 U.S. 1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975); Ackerson v. United States, 419 U.S. 1099, 95 S.Ct. 769, 42 L.Ed.2d 796 (1975); Hayles v. United States, 419 U.S. 892, 95 S.Ct. 168, 42 L.Ed.2d 136 (1974); Thompson v. United States, 400 U.S. 17, 91 S.Ct. 122, 27 L.Ed.2d 17 (1970); Marakar v. United States, 370 U.S. 723, 82 S.Ct. 1573, 8 L.Ed.2d 803 (1962); Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960). 6 This practice, which rests on the power of the Court to "afford relief which is 'just under the circumstances,' 28 U.S.C. § 2106," Rinaldi v. United States, supra, 434 U.S., at 25, n.8, 98 S.Ct., at 83, n.8, is not unique to violations of the "Petite " policy. The Court has also consistently vacated the judgments in other cases which the Solicitor General has represented were in violation of other Justice Department policies. See, e. g., Blucher v. United States, 439 U.S. 1061, 99 S.Ct. 823, 59 L.Ed.2d 27 (1979) (obscenity prosecution); Nunley v. United States, 434 U.S. 962, 98 S.Ct. 499, 54 L.Ed.2d 448 (1977) (prosecution for willfully making false statements concerning matters within jurisdiction of Department of Treasury); Margraf v. United States, 414 U.S. 1106, 94 S.Ct. 833, 38 L.Ed.2d 734 (1973) (prosecution for carrying a "concealed deadly or dangerous" weapon while boarding an aircraft); Robison v. United States, 390 U.S. 198, 88 S.Ct. 903, 19 L.Ed.2d 1040 (1968) (addition of counts upon retrial); Redmond v. United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed.2d 521 (1966) (obscenity prosecution). 7 The instant case differs from this long line of decisions only in that here the Government mistakenly, and successfully, represented to the Court of Appeals that Justice Department policy had not been violated. Because of this circumstance, we do not accept the Solicitor General's suggestion. Rather, in response to his suggestion and upon an independent examination of the record, we grant leave to proceed in forma pauperis and certiorari, vacate the judgment, and remand the case to the Court of Appeals for reconsideration in light of the Government's present position. This course is one that the Court has frequently taken when, as here, the Government has changed its position while a criminal case is pending on petition for certiorari. See, e. g., Garner v. United States, 430 U.S. 942, 97 S.Ct. 1574, 51 L.Ed.2d 789 (1977). 8 It is so ordered. 9 THE CHIEF JUSTICE and Mr. Justice WHITE dissent. 10 Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, dissents for the reason that in this case the United States already has presented the "Petite " policy issue to the Court of Appeals and that court has passed upon the issue adversely to the Government's present position. 1 Promulgated in the wake of this Court's decision in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the policy was first recognized by the Court in Petite v. United States, 361 U.S. 529, 531, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960). It has since been known as the "Petite " policy. 2 The per curiam opinion of the Court of Appeals is unreported, but the affirmance order is reported at 601 F.2d 591.

01

444 U.S. 277 100 S.Ct. 553 62 L.Ed.2d 481 George MARTINEZ et al., Appellants,v.STATE OF CALIFORNIA et al. No. 78-1268. Argued Nov. 5, 1979. Decided Jan. 15, 1980. Rehearing Denied March 3, 1980. See 445 U.S. 920, 100 S.Ct. 1285. Syllabus Appellants' decedent, a 15-year-old girl, was murdered by a parolee five months after he was released from prison despite his history as a sex offender. Appellants brought an action in a California court under state law and 42 U.S.C. § 1983, claiming that appellee state officials, by their action in releasing the parolee, subjected the decedent to a deprivation of her life without due process of law and were therefore liable in damages for the harm caused by the parolee. The trial court sustained a demurrer to the complaint. The California Court of Appeal affirmed, holding that a California statute granting public employees absolute immunity from liability for any injury resulting from parole-release determinations provided appellees with a complete defense to appellants' state-law claims, and that appellees enjoyed quasi-judicial immunity from liability under 42 U.S.C. § 1983. Held : 1. The California immunity statute is not unconstitutional when applied to defeat a tort claim arising under state law. Pp. 280-283. (a) The statute, which merely provides a defense to potential state tort-law liability, did not deprive appellants' decedent of her life without due process of law because it condoned a parole decision that led indirectly to her death. A legislative decision that has an incremental impact on the probability that death will result in any given situation cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander. P. 281. (b) Even if the statute can be characterized as a deprivation of property, the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from wholly arbitrary or irrational state action. The statute is not irrational because the California Legislature could reasonably conclude that judicial review of parole decisions "would inevitably inhibit the exercise of discretion" and that this inhibiting effect could impair the State's ability to implement a parole program designed to promote rehabilitation of inmates as well as security within prisons by holding out a promise of potential rewards. Pp. 281-283. 2. Appellants did not allege a claim for relief under federal law. Pp. 283-285. (a) The Fourteenth Amendment protected appellants' decedent only from deprivation by the State of life without due process of law, and although the decision to release the parolee from prison was action by the State, the parolee's action five months later cannot be fairly characterized as state action. Pp. 284-285. (b) Regardless of whether, as a matter of state tort law, the parole board either had a "duty" to avoid harm to the parolee's victim or proximately caused her death, appellees did not "deprive" appellants' decedent of life within the meaning of the Fourteenth Amendment. P. 285. (c) Under the particular circumstances where the parolee was in no sense an agent of the parole board, and the board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger, appellants' decedent's death was too remote a consequence of appellees' action to hold them responsible under § 1983. P. 285. 85 Cal.App.3d 430, 149 Cal.Rptr. 519, affirmed. Donald McGrath, II, San Diego, Cal., for appellants. Jeffrey T. Miller, San Diego, Cal., for appellees. Mr. Justice STEVENS delivered the opinion of the Court. 1 The two federal questions that appellants ask us to decide are (1) whether the Fourteenth Amendment invalidates a California statute granting absolute immunity to public employees who make parole-release determinations, and (2) whether such officials are absolutely immune from liability in an action brought under the federal Civil Rights Act of 1871, 42 U.S.C. § 1983.1 We agree with the California Court of Appeal that the state statute is valid when applied to claims arising under state law, and we conclude that appellants have not alleged a claim for relief under federal law. 2 The case arises out of the murder of a 15-year-old girl by a parolee. Her survivors brought this action in a California court claiming that the state officials responsible for the parole-release decision are liable in damages for the harm caused by the parolee. 3 The complaint alleged that the parolee, one Thomas, was convicted of attempted rape in December 1969. He was first committed to a state mental hospital as a "Mentally Disordered Sex Offender not amenable to treatment" and thereafter sentenced to a term of imprisonment of 1 to 20 years, with a recommendation that he not be paroled. Nevertheless, five years later, appellees decided to parole Thomas to the care of his mother. They were fully informed about his history, his propensities, and the likelihood that he would commit another violent crime. Moreover, in making their release determination they failed to observe certain "requisite formalities." Five months after his release Thomas tortured and killed appellants' decedent. We assume, as the complaint alleges, that appellees knew, or should have known, that the release of Thomas created a clear and present danger that such an incident would occur. Their action is characterized not only as negligent, but also as reckless, willful, wanton and malicious.2 Appellants prayed for actual and punitive damages of $2 million. 4 The trial judge sustained a demurrer to the complaint and his order was upheld on appeal. 85 Cal.App.3d 430, 149 Cal.Rptr. 519 (1978). After the California Supreme Court denied appellants' petition for a hearing, we noted probable jurisdiction. 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064. 5 * Section 845.8(a) of the Cal. Gov't Code Ann. (West Supp. (1979)) provides: 6 "Neither a public entity nor a public employee is liable for: 7 (a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release." 8 The California courts held that this statute provided appellees with a complete defense to appellants' state-law claims.3 They considered and rejected the contention that the immunity statute as so construed violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.4 9 Like the California courts, we cannot accept the contention that this statute deprived Thomas' victim of her life without due process of law because it condoned a parole decision that led indirectly to her death. The statute neither authorized nor immunized the deliberate killing of any human being. It is not the equivalent of a death penalty statute which expressly authorizes state agents to take a person's life after prescribed procedures have been observed. This statute merely provides a defense to potential state tort-law liability. At most, the availability of such a defense may have encouraged members of the parole board to take somewhat greater risks of recidivism in exercising their authority to release prisoners than they otherwise might. But the basic risk that repeat offenses may occur is always present in any parole system. A legislative decision that has an incremental impact on the probability that death will result in any given situation—such as setting the speed limit at 55-miles-per-hour instead of 45—cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander. 10 Nor can the statute be characterized as an invalid deprivation of property. Arguably, the cause of action for wrongful death that the State has created is a species of "property" protected by the Due Process Clause. On that hypothesis, the immunity statute could be viewed as depriving the plaintiffs of that property interest insofar as they seek to assert a claim against parole officials.5 But even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational. 11 We have no difficulty in accepting California's conclusion that there "is a rational relationship between the state's purposes and the statute."6 In fashioning state policy in a "practical and troublesome area" like this, see McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282, the California Legislature could reasonably conclude that judicial review of a parole officer's decisions "would inevitably inhibit the exercise of discretion," United States ex rel. Miller v. Twomey, 479 F.2d 701, 721 (CA7 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102. That inhibiting effect could impair the State's ability to implement a parole program designed to promote rehabilitation of inmates as well as security within prison walls by holding out a promise of potential rewards. Whether one agrees or disagrees with California's decision to provide absolute immunity for parole officials in a case of this kind, one cannot deny that it rationally furthers a policy that reasonable lawmakers may favor. As federal judges, we have no authority to pass judgment on the wisdom of the underlying policy determination. We therefore find no merit in the contention that the State's immunity statute is unconstitutional when applied to defeat a tort claim arising under state law. II 12 We turn then to appellants' § 1983 claim that appellees, by their action in releasing Thomas, subjected appellants' decedent to a deprivation of her life without due process of law.7 It is clear that the California immunity statute does not control this claim even though the federal cause of action is being asserted in the state courts.8 We also conclude that it is not necessary for us to decide any question concerning the immunity of state parole officials as a matter of federal law because, as we recently held in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433, "[t]he first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws' " of the United States.9 The answer to that inquiry disposes of this case. 13 Appellants contend that the decedent's right to life is protected by the Fourteenth Amendment to the Constitution. But the Fourteenth Amendment protected her only from deprivation by the "State . . . of life . . . without due process of law." Although the decision to release Thomas from prison was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a "duty" to avoid harm to his victim or to have proximately caused her death, see Grimm v. Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), we hold that, taking these particular allegations as true, appellees did not "deprive" appellants' decedent of life within the meaning of the Fourteenth Amendment. 14 Her life was taken by the parolee five months after his release.10 He was in no sense an agent of the parole board. Cf. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90. Further, the parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to "deprive" someone of life by action taken in connection with the release of a prisoner on parole.11 But we do hold that at least under the particular circumstances of this parole decision, appellants' decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law. Although a § 1983 claim has been described as "a species of tort liability," Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128, it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute. 15 The judgment is affirmed. 16 So ordered. 1 "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 2 Although the complaint refers to the failure to supervise Thomas after his release, a failure to warn females in the area of potential danger, and a failure to revoke the original parole decision, the litigation has focused entirely on the original decision. The individual appellees are not alleged to have responsibility for postrelease supervision of Thomas. 3 The dismissal of appellants' cause of action charging negligent failure to warn females in the area of danger was predicated on appellants' concession that there was no "continuing relationship between the state and the victim," 85 Cal.App.3d 430, 435, 149 Cal.Rptr. 519, 523 (1978), a requirement of state law. 4 ". . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S.Const., Amdt. 14, § 1. Although the question presented in the jurisdictional statement posits an Equal Protection Clause challenge to the statute, that point was not actually briefed in this Court. It was also neither raised in nor treated by the courts below. We therefore make no further reference to that challenge. 5 It is arguable, however, that the immunity defense, like an element of the tort claim itself, is merely one aspect of the State's definition of that property interest. Recently, in considering a lawyer's claim of immunity in a state malpractice action, we noted that "when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law." Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355. 6 "Martinez says the statute, Government Code section 845.8, subdivision (a), is unconstitutional because it permits the deprivation of life, a fundamental right, without due process. He suggests the statute, if it confers absolute immunity, encouraged the actions resulting in Mary Ellen's death and, thus, requires a compelling state interest. However, the Legislature has broad powers to control governmental tort liability limited only by the rule it not act arbitrarily (Reed v. City & County of San Francisco, 237 Cal.App.2d 23, 24, 46 Cal.Rptr. 543). The California Tort Claims Act as a whole (Gov.Code § 810 et seq.) has been found constitutional (Datil v. City of Los Angeles, 263 Cal.App.2d 655, 660-661, 69 Cal.Rptr. 788). The stated purpose of section 845.8, subdivision (a), is to allow correctional personnel to make determinations of release or parole unfettered by any fear of tort liability (Law Revision Com. com.). To impose tort liability would have a chilling effect on the decision-making process, impede implementation of trial release programs and prolong incarceration unjustifiably for many prisoners. There is a rational relationship between the state's purposes and the statute." 85 Cal.App.3d, at 437, 149 Cal.Rptr., at 524. The opinion of the California Court of Appeal does not expressly mention the Federal Constitution. But it is clear from appellants' response to the demurrer that they were relying on "a federally protected right to life under the Constitution of the United States." Record 59. 7 We note that the California courts accepted jurisdiction of this federal claim. That exercise of jurisdiction appears to be consistent with the general rule that where " 'an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court.' " Testa v. Katt, 330 U.S. 386, 391, 67 S.Ct. 810, 813, 91 L.Ed. 967, quoting Claflin v. Houseman, 93 U.S. 130, 137, 23 L.Ed. 833. See also Aldinger v. Howard, 427 U.S. 1, 36, n. 17, 96 S.Ct. 2413, 2430, n. 17, 49 L.Ed.2d 276 (BRENNAN, J., dissenting); Grubb v. Public Utilities Comm'n, 281 U.S. 470, 476, 50 S.Ct. 374, 377, 74 L.Ed. 972. We have never considered, however, the question whether a State must entertain a claim under § 1983. We note that where the same type of claim, if arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim. Testa v. Katt, 330 U.S., at 394, 67 S.Ct., at 814. But see Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969). 8 "Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law." Hampton v. Chicago, 484 F.2d 602, 607 (CA7 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471. 9 Baker v. McCollan, 443 U.S., at 140, 99 S.Ct., at 2692. Although there was a dissent in that case, the issue that divided the Court was, assuming the plaintiff had been deprived of constitutionally protected liberty, what process was due. There was no disagreement with the majority's methodology of isolating the particular constitutional infringement complained of. Since we decide here that the State did not "deprive" appellants' decedent of a constitutionally protected right, we need not reach the question whether a lack of "due process" was adequately alleged by the reference to a failure to observe "requisite formalities." It must be remembered that even if a state decision does deprive an individual of life or property, and even if that decision is erroneous, it does not necessarily follow that the decision violated that individual's right to due process. 10 Compare the facts in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, where local law enforcement officials themselves beat a citizen to death. 11 We reserve the question of what immunity, if any, a state parole officer has in a § 1983 action where a constitutional violation is made out by the allegations.

12

444 U.S. 252 100 S.Ct. 540 62 L.Ed.2d 461 Cyrus VANCE, Secretary of State of the United States, Appellant,v.Laurence J. TERRAZAS. No. 78-1143. Argued Oct. 30, 1979. Decided Jan. 15, 1980. Rehearing Denied March 3, 1980. See 445 U.S. 920, 100 S.Ct. 1285. Syllabus Section 349(a)(2) of the Immigration and Nationality Act provides that "a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by . . . taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof." Section 349(c) provides that the party claiming that such loss of citizenship occurred must "establish such claim by a preponderance of the evidence" and that a person who commits any act of expatriation "shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily." Appellee, who was a citizen of both the United States and Mexico at birth, subsequently obtained a certificate of Mexican citizenship after executing an application in which he swore allegiance to Mexico and expressly renounced his United States citizenship. Thereafter, the Department of State issued a certificate of loss of nationality, and the Board of Appellate Review of the Department of State affirmed. Appellee then brought suit for a declaration of his United States nationality, but the District Court concluded that the United States had proved by a preponderance of the evidence that appellee had knowingly and voluntarily taken an oath of allegiance to Mexico and renounced allegiance to the United States, thus voluntarily relinquishing United States citizenship pursuant to § 349(a)(2). The Court of Appeals reversed and remanded, holding that Congress had no power to legislate the evidentiary standard contained in § 349(c) and that the Constitution required that proof be not merely by a preponderance of the evidence, but by "clear, convincing and unequivocal evidence." Held: 1. In establishing loss of citizenship, the Government must prove an intent to surrender United States citizenship, not just the voluntary commission of an expatriating act such as swearing allegiance to a foreign nation. Congress does not have any general power to take away an American citizen's citizenship without his "assent," which means an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from his conduct. The expatriating acts specified in § 349(a) cannot be treated as conclusive evidence of the indispensable voluntary assent of the citizen. The trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship. Cf. Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757. Pp. 258-263. 2. However, the Constitution permits Congress to prescribe the standard of proof in expatriation proceedings. The specific evidentiary standard provided in § 349(c) is not invalid under either the Citizenship Clause of the Fourteenth Amendment or the Due Process Clause of the Fifth Amendment. Although the Due Process Clause imposes requirements of proof beyond a preponderance of the evidence in criminal and involuntary commitment contexts, nevertheless expatriation proceedings are civil in nature and do not threaten a loss of liberty, and thus Congress did not exceed its powers by requiring proof of an intentional expatriating act by only a preponderance of evidence. Pp. 264-267. 3. Nor is the presumption of voluntariness provided in § 349(c) constitutionally infirm. While the statute provides that any of the statutory expatriating acts, if proved, is presumed to have been committed voluntarily, it does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship, which matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. Section 349(c) and its legislative history make clear that Congress preferred the ordinary rule that voluntariness of an act is presumed and that duress is an affirmative defense to be proved by the party asserting it, and to invalidate the rule here would give the Citizenship Clause far more scope in this context than the relevant circumstances that brought the Fourteenth Amendment into being would suggest appropriate. Pp. 267-270. 577 F.2d 7, reversed and remanded. Allan A. Ryan, Jr., Washington, D. C., for appellant. Kenneth K. Ditkowsky, Chicago, Ill., for appellee. Mr. Justice WHITE delivered the opinion of the Court. 1 Section 349(a)(2) of the Immigration and Nationality Act (Act), 66 Stat. 267, 8 U.S.C. § 1481(a)(2), provides that "a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by . . . taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof." The Act also provides that the party claiming that such loss of citizenship occurred must "establish such claim by a preponderance of the evidence" and that the voluntariness of the expatriating conduct is rebuttably presumed. § 349(c), as added, 75 Stat. 656, 8 U.S.C. § 1481(c).1 The issues in this case are whether, in establishing loss of citizenship under § 1481(a)(2), a party must prove an intent to surrender United States citizenship and whether the United States Constitution permits Congress to legislate with respect to expatriation proceedings by providing the standard of proof and the statutory presumption contained in § 1481(c). 2 * Appellee, Laurence J. Terrazas, was born in this country, the son of a Mexican citizen. He thus acquired at birth both United States and Mexican citizenship. In the fall of 1970, while a student in Monterrey, Mexico, and at the age of 22, appellee executed an application for a certificate of Mexican nationality, swearing "adherence, obedience, and submission to the laws and authorities of the Mexican Republic" and "expressly renounc[ing] United States citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of the United States of America, . . ." App. to Brief for Appellant 5a.2 The certificate, which issued upon this application on April 3, 1971, recited that Terrazas had sworn adherence to the United Mexican States and that he "has expressly renounced all rights inherent to any other nationality, as well as all submission, obedience, and loyalty to any foreign government, especially to those which have recognized him as that national." Id., at 8a. Terrazas read and understood the certificate upon receipt. App. to Juris. Statement 21a. 3 A few months later, following a discussion with an officer of the United States Consulate in Monterrey, proceedings were instituted to determine whether appellee had lost his United States citizenship by obtaining the certificate of Mexican nationality. Appellee denied that he had, but in December 1971 the Department of State issued a certificate of loss of nationality. App. to Brief for Appellant 31a. The Board of Appellate Review of the Department of State, after a full hearing, affirmed that appellee had voluntarily renounced his United States citizenship. Juris. Statement 31a. As permitted by § 360(a) of the Act, 66 Stat. 273, 8 U.S.C. § 1503(a), appellee then brought this suit against the Secretary of State for a declaration of his United States nationality. Trial was de novo. 4 The District Court recognized that the first sentence of the Fourteenth Amendment,3 as construed in Afroyim v. Rusk, 387 U.S. 253, 268, 87 S.Ct. 1660, 1668, 18 L.Ed.2d 757 (1967), " 'protect[s] every citizen of this Nation against a congressional forcible destruction of his citizenship' " and that every citizen has " 'a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.' " App. to Juris. Statement 25a. A person of dual nationality, the District Court said, "will be held to have expatriated himself from the United States when it is shown that he voluntarily committed an act whereby he unequivocally renounced his allegiance to the United States." Ibid. Specifically, the District Court found that appellee had taken an oath of allegiance to Mexico, that he had "knowingly and understandingly renounced allegiance to the United States in connection with his Application for a Certificate of Mexican Nationality," id., at 28a, and that "[t]he taking of an oath of allegiance to Mexico and renunciation of a foreign country [sic ] citizenship is a condition precedent under Mexican law to the issuance of a Certificate of Mexican Nationality." Ibid. The District Court concluded that the United States had "proved by a preponderance of the evidence that Laurence J. Terrazas knowingly, understandingly and voluntarily took an oath of allegiance to Mexico, and concurrently renounced allegiance to the United States," id., at 29a, and that he had therefore "voluntarily relinquished United States citizenship pursuant to § 349(a)(2) of the . . . Act." Ibid. 5 In its opinion accompanying its findings and conclusions, the District Court observed that appellee had acted "voluntarily in swearing allegiance to Mexico and renouncing allegiance to the United States," id., at 25a, and that appellee "knew he was repudiating allegiance to the United States through his actions." Ibid. The court also said, relying upon and quoting from United States v. Matheson, 400 F.Supp. 1241, 1245 (S.D.N.Y.1975), aff'd, 532 F.2d 809 (CA2), cert. denied, 429 U.S. 823, 97 S.Ct. 75, 50 L.Ed.2d 185 (1976), that "the declaration of allegiance to a foreign state in conjunction with the renunciatory language of United States citizenship 'would leave no room for ambiguity as to the intent of the applicant.' " App. to Juris. Statement 23a. 6 The Court of Appeals reversed. 577 F.2d 7 (1978). As the Court of Appeals understood the law—and there appears to have been no dispute on these basic requirements in the Courts of Appeals the United States had not only to prove the taking of an oath to a foreign state, but also to demonstrate an intent on appellee's part to renounce his United States citizenship. The District Court had found these basic elements to have been proved by a preponderance of the evidence; and the Court of Appeals observed that, "[a]ssuming that the proper [evidentiary] standards were applied, we are convinced that the record fully supports the court's findings." Id., at 10. The Court of Appeals ruled, however, that under Afroyim v. Rusk, supra, Congress had no power to legislate the evidentiary standard contained in § 1481(c) and that the Constitution required that proof be not merely by a preponderance of the evidence, but by "clear, convincing and unequivocal evidence." 577 F.2d, at 11. The case was remanded to the District Court for further proceedings.4 7 The Secretary took this appeal under 28 U.S.C. § 1252. Because the invalidation of § 1481(c) posed a substantial constitutional issue, we noted probable jurisdiction. 440 U.S. 970, 99 S.Ct. 1532, 59 L.Ed.2d 786. II 8 The Secretary first urges that the Court of Appeals erred in holding that a "specific intent to renounce U. S. citizenship" must be proved "before the mere taking of an oath of allegiance could result in an individual's expatriation." 577 F.2d, at 11.5 His position is that he need prove only the voluntary commission of an act, such as swearing allegiance to a foreign nation, that "is so inherently inconsistent with the continued retention of American citizenship that Congress may accord to it its natural consequences, i. e., loss of nationality." Brief for Appellant 24. We disagree. 9 In Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967), the Court held that § 401(e) of the Nationality Act of 1940, 54 Stat. 1168-1169, which provided that an American citizen "shall lose his nationality by . . . [v]oting in a political election in a foreign state," contravened the Citizenship Clause of the Fourteenth Amendment. Afroyim was a naturalized American citizen who lived in Israel for 10 years. While in that nation, Afroyim voted in a political election. He in consequence was stripped of his United States citizenship. Consistently with Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (1958), which had sustained § 401(e), the District Court affirmed the power of Congress to expatriate for such conduct regardless of the citizen's intent to renounce his citizenship. This Court, however, in overruling Perez, "reject[ed] the idea . . . that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen's citizenship without his assent." Afroyim v. Rusk, supra, 387 U.S., at 257, 87 S.Ct., at 1662. The Afroyim opinion continued: § 1 of the Fourteenth Amendment is "most reasonably . . . read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it." 387 U.S., at 262, 87 S.Ct., at 1665. 10 The Secretary argues that Afroyim does not stand for the proposition that a specific intent to renounce must be shown before citizenship is relinquished. It is enough, he urges, to establish one of the expatriating acts specified in § 1481(a) because Congress has declared each of those acts to be inherently inconsistent with the retention of citizenship. But Afroyim emphasized that loss of citizenship requires the individual's "assent," 387 U.S., at 257, 87 S.Ct., at 1662, in addition to his voluntary commission of the expatriating act. It is difficult to understand that "assent" to loss of citizenship would mean anything less than an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from proved conduct. Perez had sustained congressional power to expatriate without regard to the intent of the citizen to surrender his citizenship. Afroyim overturned this proposition. It may be, as the Secretary maintains, that a requirement of intent to relinquish citizenship poses substantial difficulties for the Government in performance of its essential task of determining who is a citizen. Nevertheless, the intent of the Fourteenth Amendment, among other things, was to define citizenship; and as interpreted in Afroyim, that definition cannot coexist with a congressional power to specify acts that work a renunciation of citizenship even absent an intent to renounce. In the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct. 11 The Secretary argues that the dissent in Perez, which it is said the Court's opinion in Afroyim adopted, spoke of conduct o contrary to undivided allegiance to this country that it could result in loss of citizenship without regard to the intent of the actor and that "assent" should not therefore be read as a code word for intent to renounce. But Afroyim is a majority opinion, and its reach is neither expressly nor implicitly limited to that of the dissent in Perez. Furthermore, in his Perez dissent, Mr. Chief Justice Warren, in speaking of those acts that were expatriating because so fundamentally inconsistent with citizenship, concluded by saying that in such instances the "Government is simply giving formal recognition to the inevitable consequence of the citizen's own voluntary surrender of his citizenship." Perez v. Brownell, supra, 356 U.S., at 69, 78 S.Ct., at 581. This suggests that the Chief Justice's conception of "actions in derogation of undivided allegiance to this country," 356 U.S., at 68, 78 S.Ct., at 581, in fact would entail an element of assent. 12 In any event, we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481(a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. "Of course," any of the specified acts "may be highly persuasive evidence in the particular case of a purpose to abandon citizenship." Nishikawa v. Dulles, 356 U.S. 129, 139, 78 S.Ct. 612, 618, 2 L.Ed.2d 659 (1958) (Black, J., concurring). But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship. 13 This understanding of Afroyim is little different from that expressed by the Attorney General in his 1969 opinion explaining the impact of that case. 42 Op.Atty.Gen. 397. An "act which does not reasonably manifest an individual's transfer or abandonment of allegiance to the United States," the Attorney General said, "cannot be made a basis for expatriation." Id., at 400. Voluntarily relinquishment is "not confined to a written renunciation," but "can also be manifested by other actions declared expatriative under the [A]ct, if such actions are in derogation of allegiance to this country." Ibid. Even in these cases, however, the issue of intent was deemed by the Attorney General to be open; and, once raised, the burden of proof on the issue was on the party asserting that expatriation had occurred. Ibid. "In each case," the Attorney General stated, "the administrative authorities must make a judgment, based on all the evidence, whether the individual comes within the terms of an expatriation provision and has in fact voluntarily relinquished his citizenship." Id., at 401. It was under this advice, as the Secretary concedes, that the relevant departments of the Government have applied the statute and the Constitution to require an ultimate finding of an intent to expatriate. Brief for Appellant 56-57, n. 28.6 14 Accordingly, in the case now before us, the Board of Appellate Review of the State Department found that appellee not only swore allegiance to Mexico, but also intended to abandon his United States citizenship: "In consideration of the complete record, we view appellant's declaration of allegiance to Mexico and his concurrent repudiation of any and all submission, obedience, and loyalty to the United States as compelling evidence of a specific intent to relinquish his United States citizenship." Juris. Statement 50a. This same view—that expatriation depends on the will of a citizen as ascertained from his words and conduct was also reflected in the United States' response to the petition for certiorari in United States v. Matheson, 532 F.2d 809, cert. denied, 429 U.S. 823, 97 S.Ct. 75, 50 L.Ed.2d 185 (1976).7 Insofar as we are advised, this view remained the official position of the United States until the appeal in this case. 15 As we have said, Afroyim requires that the record support a finding that the expatriating act was accompanied by an intent to terminate United States citizenship. The submission of the United States is inconsistent with this holding, and we are unprepared to reconsider it. III 16 With respect to the principal issues before it, the Court of Appeals held that Congress was without constitutional authority to prescribe the standard of proof in expatriation proceedings and that the proof in such cases must be by clear and convincing evidence rather than by the preponderance standard prescribed in § 1481(c). We are in fundamental disagreement with these conclusions. 17 In Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659 (1958), an American-born citizen, temporarily in Japan, was drafted into the Japanese Army. The Government later claimed that, under § 401(c) of the Nationality Act of 1940, 54 Stat. 1169, he had expatriated himself by serving in the armed forces of a foreign nation. The Government agreed that expatriation had not occurred if Nishikawa's army service had been involuntary. Nishikawa contended that the Government had to prove that his service was voluntary, while the Government urged that duress was an affirmative defense that Nishikawa had the burden to prove by overcoming the usual presumption of voluntariness. This Court held the presumption unavailable to the Government and required proof of a voluntary expatriating act by clear and convincing evidence. 18 Section 1481(c) soon followed; its evident aim was to supplant the evidentiary standards prescribed by Nishikawa.8 The provision "sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government. The presumption of voluntariness under the proposed rules of evidence, would be rebuttable—similarly—by preponderance of the evidence, . . . " H.R.Rep. No. 1086, 87th Cong., 1st Sess., 41, U.S.Code Cong. & Admin.News, p. 2985 (1961). 19 We see no basis for invalidating the evidentiary prescriptions contained in § 1481(c). Nishikawa was not rooted in the Constitution. The Court noted, moreover, that it was acting in the absence of legislative guidance. Nishikawa v. Dulles, 356 U.S., at 135, 78 S.Ct., at 616. Nor do we agree with the Court of Appeals that, because under Afroyim Congress is constitutionally devoid of power to impose expatriation on a citizen, it is also without power to prescribe the evidentiary standards to govern expatriation proceedings. 577 F.2d, at 10. Although § 1481(c) had been law since 1961, Afroyim did not address or advert to that section; surely the Court would have said so had it intended to construe the Constitution to exclude expatriation proceedings from the traditional powers of Congress to prescribe rules of evidence and standards of proof in the federal courts. This power, rooted in the authority of Congress conferred by Art. 1, § 8, cl. 9, of the Constitution to create inferior federal courts, is undoubted and has been frequently noted and sustained. See, e. g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31, 96 S.Ct. 2882, 2899, 49 L.Ed.2d 752 (1976); Hawkins v. United States, 358 U.S. 74, 78, 79 S.Ct. 136, 138, 3 L.Ed.2d 125 (1958); Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519 (1943). 20 We note also that the Court's opinion in Afroyim was written by Mr. Justice Black who, in concurring in Nishikawa, said that the question whether citizenship has been voluntarily relinquished is to be determined on the facts of each case and that Congress could provide rules of evidence for such proceedings. Nishikawa v. Dulles, supra, 356 U.S., at 139, 78 S.Ct., at 618. In this respect, we agree with Mr. Justice Black; and since Congress has the express power to enforce the Fourteenth Amendment, it is untenable to hold that it has no power whatsoever to address itself to the manner or means by which Fourteenth Amendment citizenship may be relinquished. 21 We are unable to conclude that the specific evidentiary standard provided by Congress in § 1481(c) is invalid under either the Citizenship Clause or the Due Process Clause of the Fifth Amendment. It is true that in criminal and involuntary commitment contexts we have held that the Due Process Clause imposes requirements of proof beyond a preponderance of the evidence. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). This Court has also stressed the importance of citizenship and evinced a decided preference for requiring clear and convincing evidence to prove expatriation. Nishikawa v. United States, supra. But expatriation proceedings are civil in nature and do not threaten a loss of liberty. Moreover, as we have noted, Nishikawa did not purport to be constitutional ruling, and the same is true of similar rulings in related areas. Woodby v. INS, 385 U.S. 276, 285, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966) (deportation); Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1779 (1943) (denaturalization). None of these cases involved a congressional judgment, such as that present here, that the preponderance standard of proof provides sufficient protection for the interest of the individual in retaining his citizenship. Contrary to the Secretary's position, we have held that expatriation requires the ultimate finding that the citizen has committed the expatriating act with the intent to renounce his citizenship. This in itself is a heavy burden, and we cannot hold that Congress has exceeded its powers by requiring proof of an intentional expatriating act by a preponderance of evidence. IV 22 The Court of Appeals did not discuss separately the validity of the statutory presumption provided in § 1481(c). By holding that the section was beyond the power of Congress, however, and by requiring that the expatriating act be proved voluntary by clear and convincing evidence, the Court of Appeals effectively foreclosed use of the § 1481(c) presumption of voluntariness, not only in the remand proceedings in the District Court, but also in other expatriation proceedings in that Circuit. As we have indicated, neither the Citizenship Clause nor Afroyim places suits as this wholly beyond the accepted power of Congress to prescribe rules of evidence in federal courts. We also conclude that the presumption of voluntariness provided in § 1481(c) is not otherwise constitutionally infirm. 23 Section 1481(c) provides in relevant part that "any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily." In enacting § 1481(c), Congress did not dispute the holding of Nishikawa that the alleged expatriating act there, service in a foreign army—must be performed voluntarily, but it did insist that the Government have the benefit of the usual presumption of voluntariness and that one claiming that his act was involuntary make out his claim of duress by a preponderance of the evidence. 24 It is important at this juncture to note the scope of the statutory presumption. Section 1481(c) provides that any of the statutory expatriating acts, if proved, are presumed to have been committed voluntarily. It does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship. That matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. As so understood, we cannot invalidate the provision.9 25 The majority opinion in Nishikawa referred to the "ordinary rule that duress is a matter of affirmative defense" to be proved by the party claiming the duress. Nishikawa v. Dulles, 356 U.S., at 134, 78 S.Ct., at 616. Justices Frankfurter and Burton, concurring in the result, also referred to the "ordinarily controlling principles of evidence [that] would suggest that the individual, who is peculiarly equipped to clarify an ambiguity in the meaning of outward events should have the burden of proving what his state of mind was." Id., at 141, 78 S.Ct., at 619. And Mr. Justice Harlan, in dissent with Mr. Justice Clark, pointed to the "general rule that consciously performed acts are presumed voluntary" and referred to Federal Rule of Civil Procedure 8(c), which treats duress as a matter of affirmative defense. 356 U.S., at 144, 78 S.Ct., at 621. Yet the Court in Nishikawa, because it decided that "the consequences of denationalization are so drastic" and because it found nothing indicating a contrary result in the legislative history of the Nationality Act of 1940, held that the Government must carry the burden of proving that the expatriating act was performed voluntarily. Id., at 133-138, 78 S.Ct., at 615-617.10 26 Section 1481(c), which was enacted subsequently, and its legislative history, H.R.Rep. No. 1086, 87th Cong., 1st Sess., at 40-41 (1961), make clear that Congress preferred the ordinary rule that voluntariness is presumed and that duress is an affirmative defense to be proved by the party asserting it. SeeHartsville Oil Mill v. United States, 271 U.S. 43, 49-50, 46 S.Ct. 389, 391-392, 70 L.Ed. 822 (1926); Towson v. Moore, 173 U.S. 17, 23-24, 19 S.Ct. 332, 334, 43 L.Ed. 597 (1899); Savage v. United States, 92 U.S. 382, 387-388, 23 L.Ed. 660 (1876). "Duress, if proved, may be a defence to an action . . . but the burden of proof to establish the charge . . . is upon the party making it. . . ." Mason v. United States, 17 Wall. 67, 74, 21 L.Ed. 564 (1873).11 The rationality of the procedural rule with respect to claims of involuntariness in ordinary civil cases cannot be doubted. To invalidate the rule here would be to disagree flatly with Congress on the balance to be struck between the interest in citizenship and the burden the Government must assume in demonstrating expatriating conduct. It would also constitutionalize that disagreement and give the Citizenship Clause of the Fourteenth Amendment far more scope in this context than the relevant circumstances that brought the Amendment into being would suggest appropriate. Thus we conclude that the presumption of voluntariness included in § 1481(c) has continuing vitality. V 27 In sum, we hold that in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of the evidence. We also hold that when one of the statutory expatriating acts is proved, it is constitutional to presume it to have been a voluntary act until and unless proved otherwise by the actor. If he succeeds, there can be no expatriation. If he fails, the question remains whether on all the evidence the Government has satisfied its burden of proof that the expatriating act was performed with the necessary intent to relinquish citizenship. 28 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 29 So ordered. 30 Mr. Justice STEWART dissents for the reasons stated in Part II of Mr. Justice BRENNAN's dissenting opinion, which he joins. 31 Mr. Justice MARSHALL, concurring in part and dissenting in part. 32 I agree with the Court's holding that a citizen of the United States may not lose his citizenship in the absence of a finding that he specifically intended to renounce it. I also concur in the adoption of a saving construction of 8 U.S.C. § 1481 (a)(2) to require that the statutorily designated expatriating acts be done with a specific intent to relinquish citizenship. 33 I cannot, however, accept the majority's conclusion that a person may be found to have relinquished his American citizenship upon a preponderance of the evidence that he intended to do so. The Court's discussion of congressional power to "prescribe rules of evidence and standards of proof in the federal courts," ante, at 265, is the beginning, not the end, of the inquiry. It remains the task of this Court to determine when those rules and standards impinge on constitutional rights. As my Brother Stevens indicates, the Court's casual dismissal of the importance of American citizenship cannot withstand scrutiny. And the mere fact that one who has been expatriated is not locked up in a prison does not dispose of the constitutional inquiry. As Mr. Chief Justice Warren stated over 20 years ago: 34 "[T]he expatriate has lost the right to have rights. 35 "This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious." Trop v. Dulles, 356 U.S. 86, 102, 78 S.Ct. 590, 599, 2 L.Ed.2d 596 (1958) (plurality opinion) (footnotes omitted). 36 For these reasons I cannot understand, much less accept, the Court's suggestion that "expatriation proceedings . . . do not threaten a loss of liberty." Ante, at 266. Recognizing that a standard of proof ultimately " 'reflects the value society places' " on the interest at stake, Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 372 (1979). I would hold that a citizen may not lose his citizenship in the absence of clear and convincing evidence that he intended to do so. 37 Mr. Justice STEVENS, concurring in part and dissenting in part. 38 The Court today unanimously reiterates the principle set forth in Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757, that Congress may not deprive an American of his citizenship against his will, but may only effectuate the citizen's own intention to renounce his citizenship. I agree with the Court that Congress may establish certain standards for determining whether such a renunciation has occurred. It may, for example, provide that expatriation can be proved by evidence that a person has performed an act that is normally inconsistent with continued citizenship and that the person thereby specifically intended to relinquish his American citizenship. 39 I do not agree, however, with the conclusion that Congress has established a permissible standard in 8 U.S.C. § 1481(a)(2). Since we accept dual citizenship, taking an oath of allegiance to a foreign government is not necessarily inconsistent with an intent to remain an American citizen. Moreover, as now written, the statute cannot fairly be read to require a finding of specific intent to relinquish citizenship. The statute unambiguously states that 40 "a national of the United States . . . shall lose his nationality by— 41 * * * * * 42 "(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof." 43 There is no room in this provision to imply a requirement of a specific intent to relinquish citizenship. The Court does not attempt to do so, nor does it explain how any other part of the statute supports its conclusion that Congress required proof of specific intent.1 44 I also disagree with the holding that a person may be deprived of his citizenship upon a showing by a mere preponderance of the evidence that he intended to relinquish it. The Court reasons that because the proceedings in question are civil in nature and do not result in any loss of physical liberty, no greater burden of proof is required than in the ordinary civil case. Such reasoning construes the constitutional concept of "liberty" too narrowly. 45 The House Report accompanying the 1961 amendment to the Immigration and Naturalization Act of 1952 refers to "the dignity and the priceless value of U. S. citizenship." H.R. Rep. No. 1086, 87th Cong., 1st Sess. 41 (1961). U.S.Code Cong. & Admin.News, p. 2985. That characterization is consistent with this Court's repeated appraisal of the quality of the interest at stake in this proceeding.2 In my judgment a person's interest in retaining his American citizenship is surely an aspect of "liberty" of which he cannot be deprived without due process of law. Because the interest at stake is comparable to that involved in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 372, essentially for the reasons stated in THE CHIEF JUSTICE's opinion for a unanimous Court in that case, see id., at 425-427, 431-433, 99 S.Ct., at 1809-1810, 1812-1813, I believe that due process requires that a clear and convincing standard of proof be met in this case as well before the deprivation may occur. 46 Mr. Justice BRENNAN, with whom Mr. Justice STEWART joins as to Part II, dissenting. 47 The Court holds that one may lose United States citizenship if the Government can prove by a preponderance of the evidence that certain acts, specified by statute, were done with the specific intent of giving up citizenship. Accordingly, the Court, in reversing the judgment of the Court of Appeals, holds that the District Court applied the correct evidentiary standards in determining that appellee was properly stripped of his citizenship. Because I would hold that one who acquires United States citizenship by virtue of being born in the United States, U.S.Const., Amdt. 14, § 1, can lose that citizenship only by formally renouncing it, and because I would hold that the act of which appellee is accused in this case cannot be an expatriating act, I dissent. 48 * This case is governed by Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). Afroyim, emphasizing the crucial importance of the right of citizenship, held unequivocally that a citizen has "a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship." Id., at 268, 87 S.Ct. at 1668. "[T]he only way the citizenship . . . could be lost was by the voluntary renunciation or abandonment by the citizen himself." Id., at 266, 87 S.Ct., at 1667. The Court held that because Congress could not "abridge," "affect," "restrict the effect of," or "take . . . away" citizenship, Congress was "without power to rob a citizen of his citizenship" because he voted in a foreign election. Id., at 267, 87 S.Ct., at 1667. 49 The same clearly must be true of the Government's attempt to strip appellee of citizenship because he swore an oath of allegiance to Mexico.1 Congress has provided for a procedure by which one may formally renounce citizenship.2 In this case the appellant concedes that appellee has not renounced his citizenship under that procedure.3 Brief for Appellant 56. Because one can lose citizenship only by voluntarily renouncing it and because appellee has not formally renounced his, I would hold that he remains a citizen. Accordingly, I would remand the case with orders that appellee be given a declaration of United States nationality.4 II 50 I reach the same result by another, independent line of reasoning. Appellee was born a dual national. He is a citizen of the United States because he was born here and a citizen of Mexico because his father was Mexican. The only expatriating act of which appellee stands accused is having sworn an oath of allegiance to Mexico. If dual citizenship, per se, can be consistent with United States citizenship, Perkins v. Elg, 307 U.S. 325, 329, 59 S.Ct. 884, 887, 83 L.Ed. 1320 (1939),5 then I cannot see why an oath of allegiance to the other country of which one is already a citizen should create inconsistency. One owes allegiance to any country of which one is a citizen, especially when one is living in that country. Kawakita v. United States, 343 U.S. 717, 733-735, 72 S.Ct. 950, 960-961, 96 L.Ed. 1249 (1952).6 The formal oath adds nothing to the existing foreign citizenship and, therefore, cannot affect his United States citizenship. 1 The relevant statutory provisions are §§ 349(a)(2), (c) of the Act, 66 Stat. 267, as amended, 75 Stat. 656, as set forth in 8 U.S.C. § 1481: "(a) From and after the effective date of this chapter a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by— * * * * * "(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof; * * * * * "(c) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Except as otherwise provided in subsection (b) of this section, any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily." 2 The application contained the following statement: "I therefore hereby expressly renounce ____ citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of ____, of which I might have been subject, all protection foreign to the laws and authorities of Mexico, all rights which treaties or international law grant to foreigners; and furthermore I swear adherence, obedience, and submission to the laws and authorities of the Mexican Republic." The blank spaces in the statement were filled in with the words "Estados Unidos" (United States) and "Norteamerica" (North America), respectively. Brief for Appellant 4. 3 The Fourteenth Amendment, § 1, reads: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." 4 In remanding the case to the District Court, the Court of Appeals did not "necessarily requir[e] that court to conduct a new trial." 577 F.2d, at 12. The Court of Appeals recognized that, even granting the higher standard of proof it had imposed on the District Court, the factual determinations already on the record might be adequate to permit consideration of the case on remand without the holding of another trial or evidentiary hearing. Ibid. 5 The Court of Appeals' discussion of specific intent is submerged in its analysis of proper evidentiary standards. Id., at 11. The absence of independent analysis undoubtedly resulted from the Secretary's failure to contend in either the District Court or the Court of Appeals that it was unnecessary to prove an intent to relinquish citizenship. Indeed, the jurisdictional statement filed by the Secretary in this Court presented the single question whether 8 U.S.C. § 1481(c) is unconstitutional under the Citizenship Clause of the Fourteenth Amendment; it did not present separately the question whether proof of a specific intent to relinquish is essential to expatriation. Our Rule 15(1)(c) states that "[o]nly the questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the court." The Secretary now argues that resolution of the intent issue is an essential, or at least an advisable, predicate to an intelligent resolution of the constitutionality of § 1481(c). There is some merit in this position: arguably the intent issue is fairly comprised in the question set forth in the jurisdictional statement. In any event, consideration of issues not present in the jurisdictional statement or petition for certiorari and not presented in the Court of Appeals is not beyond our power, and in appropriate circumstances we have addressed them. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 320, n. 6, 91 S.Ct. 1434, 1438, n. 6, 28 L.Ed.2d 788 (1971); Erie R. Co. v. Tompkins, 304 U.S. 64, 66, 68-69, 58 S.Ct. 817, 818, 82 L.Ed. 1188 (1938) (parties agreed that Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 (1842), was still good law). Cf. Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974); Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 330 (1970); Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). See generally R. Stern & E. Gressman, Supreme Court Practice, §§ 6.27 and 7.14 (5th ed. 1978). As will be more apparent below, the Secretary, represented in this Court by the Solicitor General, has changed his position on the intent issue since the decision of the Court of Appeals; and his present position is at odds with a 1969 opinion of the Attorney General, 42 Op.Atty.Gen. 397, which interpreted Afroyim v. Rusk and guided the administrative actions of the State Department and the Immigration and Naturalization Service. The issue of intent is important, the parties have briefed it, and we shall address it. 6 As the Secretary states in his brief, Brief for Appellant 57, n. 28, "both the State Department and the Immigration and Naturalization Service have adopted administrative guidelines that attempt to ascertain the individual's intent by taking into consideration the nature of the expatriating act and the individual's statements and actions made in connection with that act." The State Department's guideline evidences a position on intent quite similar to that adopted here: "In the light of the Afroyim decision and the Attorney General's Statement of Interpretation of that decision, the Department now holds that the taking of a meaningful oath of allegiance to a foreign state is highly persuasive evidence of an intent to transfer or abandon allegiance. The taking of an oath that is not meaningful does not result in expatriation. The meaningfulness of the oath must be decided by the Department on the individual merits of each case." Department of State, 8 Foreign Affairs Manual § 224.2, p. 2 (1970) (emphasis in original). Cf. Immigration and Naturalization Service, Interpretations § 349.1(d)(2), p. 6976.4 (1970) (characterizing Afroyim as overruling Perez § holding "that expatriation could flow from a voluntary act even though the citizen did not intend thereby to relinquish his United States citizenship"). Contemporaneous academic commentary agreed that Afroyim imposed the requirement of intent to relinquish citizenship on a party seeking to establish expatriation. See Comment, An Expatriation Enigma: Afroyim v. Rusk, 48 B.U.L.Rev. 295, 298 (1968); Note, Acquisition of Foreign Citizenship: The Limits of Afroyim v. Rusk, 54 Cornell L.Rev. 624, 624-625 (1969); The Supreme Court: 1966 Term, 81 Harv.L.Rev. 69, 126 (1967); Note, 29 Ohio St.L.J. 797, 801 (1968). 7 In his response to the petition for certiorari in Matheson, the Solicitor General argued that "Afroyim broadly held that Congress has no power to prescribe any objective conduct that will automatically result in expatriation, absent the individual's voluntary relinquishment of citizenship. . . . " Brief in Opposition in Matheson v. United States, O.T.1976, No. 75-1651, p. 8. In Matheson, it was maintained, "there is nothing in the record that would support a finding that decedent's application for a certificate of Mexican nationality was prompted by a specific intent to relinquish her American citizenship." Id., at 7. Thus, the Solicitor General concluded, no expatriation could be said to have taken place. 8 The House Report accompanying § 1481(c), H.R.Rep. No. 1086, 87th Cong., 1st Sess., 40 (1961), U.S.Code Cong. & Admin.News, p. 2950, took direct aim at Nishikawa § holding that "the Government must in each case prove voluntary conduct by clear, convincing and unequivocal evidence." Nishikawa v. Dulles, 356 U.S., at 138, 78 S.Ct., at 617. The Report quoted with approval from Mr. Justice Harlan's dissenting opinion in Nishikawa : " 'Although the Court recognizes the general rule that consciously performed acts are presumed voluntary, [citations omitted], it in fact alters this rule in all denationalization cases by placing the burden of proving voluntariness on the Government, thus relieving citizen-claimants in such cases from the duty of proving that their presumably voluntary acts were actually involuntary. " 'One of the prime reasons for imposing the burden of proof on the party claiming involuntariness is that the evidence normally lies in his possession. " 'I * * * find myself compelled to dissent because in my opinion the majority's position can be squared neither with congressional intent nor with proper and well-established rules governing the burden of proof on the issue of duress.' " H.R.Rep. No. 1086, supra, at 41 U.S.Code Cong. & Admin.News, p. 2984 (quoting Nishikawa v. Dulles, supra, 356 U.S., at 144-145, 78 S.Ct., at 621. The Report continued: "In order to forestall further erosion of the statute designed to preserve and uphold the dignity and the priceless value of U. S. citizenship, with attendant obligations, . . . [§ 1481(c)] sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government." H.R.Rep. No. 1086, supra, at 41. The Report concluded by describing the rebuttable presumption of voluntariness in § 1481(c). 9 The Secretary asserts that the § 1481(c) presumption cannot survive constitutional scrutiny if we hold that intent to relinquish citizenship is a necessary element in proving expatriation. Brief for Appellant 26. The predicate for this assertion seems to be that § 1481(c) presumes intent to relinquish as well as voluntariness. We do not so read it. Even if we did, and even if we agreed that presuming the necessary intent is inconsistent with Afroyim, it would be unnecessary to invalidate the section insofar as it presumes that the expatriating act itself was performed voluntarily. 10 The Court's departure from the normal rule that duress is an affirmative defense to be proved by the party seeking to rely on it was noted when Nishikawa was handed down. See The Supreme Court: 1957 Term, 72 Harv.L.Rev. 77, 166, 171 (1958) (Nishikawa "not only extended the Government's burden in expatriation proceedings to include the absence of duress if this issue is raised, but also determined the standard by which it must be shown. The position of the majority runs counter to the usual rule that duress is an affirmative defense"). 11 The rule that duress is an affirmative defense to be pleaded and proved by the party attempting to rely on it is well established. Even where a plaintiff's complaint improperly contains allegations that seek to avoid or defeat a potential affirmative defense, "it is inappropriate for the court to shift the burden of proof on the anticipated defense to plaintiff as a 'sanction' for failing to follow the burden of pleading structure established by Rule 8 or by adopting the fiction that plaintiff's anticipation of the issue evidences his intention to 'assume' the burden of proving it." 5 C. Wright & A. Miller, Federal Practice and Procedure § 1276, p. 327 (1969). On affirmative defenses generally, see id., § 1270, at 289 et seq. 1 It could perhaps be argued that a specific intent requirement can be derived from 8 U.S.C. § 1481(c). That subsection creates a rebuttable presumption that any expatriating act set forth in subsection (a) was performed "voluntarily." The term "voluntary" could conceivably be stretched to include the concept of a specific intent to renounce one's citizenship. While the person seeking to retain his citizenship would thus have the burden of showing a lack of specific intent, such a construction would at least provide a statutory basis for bringing the issue of intent into the proceeding. The majority apparently would not be willing to accept such a construction in order to salvage the statute, however, inasmuch as it rejects the Secretary's argument that, if there is a requirement of specific intent, it is also subject to the presumption applicable to voluntariness. Ante, at 268. The majority's assumption that the statute can be read to require specific intent to relinquish citizenship as an element of proof is also contradicted by the Court's treatment in Afroyim of a different subsection of the same statute. Like the subsection at issue here, subsection (a)(5) provided that an American automatically lost his nationality by performing a specific act: in that case, voting in a foreign election. If the majority's analysis in this case was correct, the Court in Afroyim should not have invalidated that provision of the statute; rather, it should merely have remanded for a finding as to whether Afroyim had voted in a foreign election with specific intent to relinquish his American citizenship. That the Court did not do so is strong evidence of its belief that the statute could not be reformed as it is today. 2 See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 83 S.Ct. 554, 563, 9 L.Ed.2d 664, where the Court quoted another report describing American citizenship as " 'one of the most valuable rights in the world today.' " See also Afroyim v. Rusk, 387 U.S. 253, 267-268, 87 S.Ct. 1660, 1667-1668, 18 L.Ed.2d 757; Trop v. Dulles, 356 U.S. 86, 92, 78 S.Ct. 590, 593, 2 L.Ed.2d 596. 1 He was a Mexican citizen by virtue of his father's citizenship. 2 Title 8 U.S.C. § 1481(a)(6) provides that "a national of the United States whether by birth or naturalization, shall lose his nationality by . . . * * * * * making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State." The Secretary of State has prescribed such procedures in 22 CFR § 50.50 (1979). See Department of State, 8 Foreign Affairs Manual § 225.6 (1972). Congress also provided for renunciation by citizens while in the United States in 8 U.S.C. § 1481(a)(7). This last provision is not relevant to our case. 3 Therefore, the appellant does not argue that appellee can be expatriated under 8 U.S.C. § 1481(a)(6). See n.2, supra. 4 I would not reach the issues concerning 8 U.S.C. § 1481(c). 5 Rogers v. Bellei, 401 U.S. 815, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971), is not to the contrary. Bellei's citizenship was not based on the Fourteenth Amendment, id., at 833, 835, 91 S.Ct., at 1070, 1071, and the issue before the Court was whether Bellei could lose his statutory citizenship for failure to satisfy a condition subsequent contained in the same statute that accorded him citizenship. 6 Indeed, the opinion of the State Department once was "that a person with a dual citizenship who lives abroad in the other country claiming him as a national owes an allegiance to it which is paramount to the allegiance he owes the United States." Kawakita v. United States, 343 U.S., at 734-735, 72 S.Ct., at 961.

12

444 U.S. 320 100 S.Ct. 571 62 L.Ed.2d 516 Randal RUSH et al., Appellants,v.Jeffrey D. SAVCHUK. No. 78-952. Argued Oct. 3, 1979. Decided Jan. 21, 1980. Syllabus While a resident of Indiana, appellee was injured in an accident in Indiana while riding as a passenger in a car driven by appellant Rush, also an Indiana resident. After moving to Minnesota, appellee commenced this action against Rush in a Minnesota state court, alleging negligence and seeking damages. As Rush had no contacts with Minnesota that would support in personam jurisdiction, appellee attempted to obtain quasi in rem jurisdiction by garnishing the contractual obligation of State Farm Mutual Automobile Insurance Co. (State Farm) to defend and indemnify Rush in connection with such a suit. State Farm, which does business in Minnesota, had insured the car, owned by Rush's father, under a liability insurance policy issued in Indiana. Rush was personally served in Indiana, and after State Farm's response to the garnishment summons asserted that it owed the defendant nothing, appellee moved the trial court for permission to file a supplemental complaint making the garnishee, State Farm, a party to the action. Rush and State Farm moved to dismiss the complaint for lack of jurisdiction over the defendant. The trial court denied the motion to dismiss and granted the motion for leave to file the supplemental complaint. The Minnesota Supreme Court affirmed, ultimately holding that the assertion of quasi in rem jurisdiction under the Minnesota garnishment statute complied with the due process standards enunciated in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683. Held: A State may not constitutionally exercise quasi in rem jurisdiction over a defendant who has no forum contacts by attaching the contractual obligation of an insurer licensed to do business in the State to defend and indemnify him in connection with the suit. Pp. 327-333. (a) A State may exercise jurisdiction over an absent defendant only if the defendant has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. In determining whether a particular exercise of state-court jurisdiction is consistent with due process, the inquiry must focus on "the relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner, supra, at 204, 97 S.Ct. 2579. P. 327. (b) Here, the only affiliating circumstance offered to show a relationship among Rush, Minnesota, and this lawsuit is that Rush's insurance company does business in the State. However, the fictional presence in Minnesota of State Farm's policy obligation to defend and indemnify Rush—derived from combining the legal fiction that assigns a situs to a debt, for garnishment purposes, wherever the debtor is found with the legal fiction that a corporation is "present," for jurisdictional purposes, wherever it does business cannot be deemed to give the State the power to determine Rush's liability for the out-of-state accident. The mere presence of property in a State does not establish a sufficient relationship between the owner of the property and the State to support the exercise of jurisdiction over an unrelated cause of action, and it cannot be said that the defendant engaged in any purposeful activity related to the forum that would make the exercise of jurisdiction fair, just, or reasonable merely because his insurer does business there. Nor does the policy provide significant contacts between the litigation and the forum, for the policy obligations pertain only to the conduct, not the substance, of the litigation. Pp. 327-330. (c) Moreover, the requisite minimum contacts with the forum cannot be established under an alternative approach attributing the insurer's forum contacts to the defendant by treating the attachment procedure as the functional equivalent of a direct action against the insurer, and considering the insured a "nominal defendant" in order to obtain jurisdiction over the insurer. The State's ability to exert its power over the "nominal defendant" is analytically prerequisite to the insurer's entry into the case as a garnishee, and if the Constitution forbids the assertion of jurisdiction over the insured based on the policy, then there is no conceptual basis for bringing the "garnishee" into the action. Nor may the Minnesota court attribute State Farm's contacts to Rush by considering the "defending parties" together and aggregating their forum contacts in determining whether it has jurisdiction. The parties' relationships with each other may be significant in evaluating their ties to the forum, but the requirements of International Shoe must be met as to each defendant over whom a state court exercises jurisdiction. Pp. 330-332. Minn., 272 N.W.2d 888, reversed. Oscar C. Adamson, II, Minneapolis, Minn., for appellants. Edward H. Borkon, Minneapolis, Minn., for appellee. Mr. Justice MARSHALL delivered the opinion of the Court. 1 This appeal presents the question whether a State may constitutionally exercise quasi in rem jurisdiction over a defendant who has no forum contacts by attaching the contractual obligation of an insurer licensed to do business in the State to defend and indemnify him in connection with the suit. 2 * On January 13, 1972, two Indiana residents were involved in a single-car accident in Elkhart, Ind. Appellee Savchuk, who was a passenger in the car driven by appellant Rush, was injured. The car, owned by Rush's father, was insured by appellant State Farm Mutual Automobile Insurance Co. (State Farm) under a liability insurance policy issued in Indiana. Indiana's guest statute would have barred a claim by Savchuk. Ind.Code § 9-3-3-1 (1976). 3 Savchuk moved with his parents to Minnesota in June 1973.1 On May 28, 1974, he commenced an action against Rush in the Minnesota state courts.2 As Rush had no contacts with Minnesota that would support in personam jurisdiction, Savchuk attempted to obtain quasi in rem jurisdiction by garnishing State Farm's obligation under the insurance policy to defend and indemnify Rush in connection with such a suit.3 State Farm does business in Minnesota.4 Rush was personally served in Indiana. The complaint alleged negligence and sought $125,000 in damages.5 4 As provided by the state garnishment statute, Savchuk moved the trial court for permission to file a supplemental complaint making the garnishee, State Farm, a party to the action after State Farm's response to the garnishment summons asserted that it owed the defendant nothing.6 Rush and State Farm moved to dismiss the complaint for lack of jurisdiction over the defendant.7 The trial court denied the motion to dismiss and granted the motion for leave to file the supplemental complaint. 5 On appeal, the Minnesota Supreme Court affirmed the trial court's decision. 311 Minn. 480, 245 N.W.2d 624 (1976) (Savchuk I ). It held, first, that the obligation of an insurance company to defend and indemnify a nonresident insured under an automobile liability insurance policy is a garnishable res in Minnesota for the purpose of obtaining quasi in rem jurisdiction when the incident giving rise to the action occurs outside Minnesota but the plaintiff is a Minnesota resident when the suit is filed. Second, the court held that the assertion of jurisdiction over Rush was constitutional because he had notice of the suit and an opportunity to defend, his liability was limited to the amount of the policy, and the garnishment procedure may be used only by Minnesota residents. The court expressly recognized that Rush had engaged in no voluntary activity that would justify the exercise of in personam jurisdiction. The court found, however, that considerations of fairness supported the exercise of quasi in rem jurisdiction because in accident litigation the insurer controls the defense of the case, State Farm does business in and is regulated by the State, and the State has an interest in protecting its residents and providing them with a forum in which to litigate their claims. 6 Rush appealed to this Court. We vacated the judgment and remanded the cause for further consideration in light of Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). 433 U.S. 902, 97 S.Ct. 2964, 53 L.Ed.2d 1086 (1977). 7 On remand, the Minnesota Supreme Court held that the assertion of quasi in rem jurisdiction through garnishment of an insurer's obligation to an insured complied with the due process standards enunciated in Shaffer. 272 N.W.2d 888 (1978) (Savchuk II ). The court found that the garnishment statute differed from the Delaware stock sequestration procedure held unconstitutional in Shaffer because the garnished property was intimately related to the litigation and the garnishment procedure paralleled the asserted state interest in "facilitating recoveries for resident plaintiffs." 272 N.W.2d, at 891.8 This appeal followed. II 8 The Minnesota Supreme Court held that the Minnesota garnishment statute embodies the rule stated in Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966), that the contractual obligation of an insurance company to its insured under a liability insurance policy is a debt subject to attachment under state law if the insurer does business in the State.9 Seider jurisdiction was upheld against a due process challenge in Simpson v. Loehmann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669 (1967), reargument denied, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319 (1968). The New York court relied on Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1905), in holding that the presence of the debt in the State was sufficient to permitquasi in rem jurisdiction over the absent defendant. The court also concluded that the exercise of jurisdiction was permissible under the Due Process Clause because, "[v]iewed realistically, the insurer in a case such as the present is in full control of the litigation" and "where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with the controversy." Simpson v. Loehmann, supra, 287 N.Y.S.2d, at 311, 287 N.Y.S.2d, at 637, 234 N.E.2d, at 672. 9 The United States Court of Appeals for the Second Circuit gave its approval to Seider in Minichiello v. Rosenberg, 410 F.2d 106, adhered to en banc, 410 F.2d 117 (1968), cert. denied, 396 U.S. 844, 90 S.Ct. 69, 24 L.Ed.2d 94 (1969), although on a slightly different rationale. Judge Friendly construed Seider as "in effect a judicially created direct action statute. The insurer doing business in New York is considered the real party in interest and the nonresident insured is viewed simply as a conduit, who has to be named as a defendant in order to provide a conceptual basis for getting at the insurer." 410 F.2d, at 109, see Donawitz v. Danek, 42 N.Y.2d 138, 142, 397 N.Y.S.2d 592, 594, 366 N.E.2d 253, 255 (1977). The court held that New York could constitutionally enact a direct action statute, and that the restriction of liability to the amount of the policy coverage made the policyholder's personal stake in the litigation so slight that the exercise of jurisdiction did not offend due process. 10 New York has continued to adhere to Seider.10 New Hampshire has followed Seider if the defendant resides in a Seider jurisdiction,11 but not in other cases.12 Minnesota is the only other State that has adopted Seider -type jurisdiction.13 The Second Circuit recently reaffirmed its conclusion that Seider does not violate due process after reconsidering the doctrine in light of Shaffer v. Heitner. O'Connor v. Lee-Hy Paving Corp., 579 F.2d 194, cert. denied, 439 U.S. 1034, 99 S.Ct. 638, 58 L.Ed.2d 696 (1978). III 11 In Shaffer v. Heitner we held that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." 433 U.S., at 212, 97 S.Ct., at 2584. That is, a State may exercise jurisdiction over an absent defendant only if the defendant has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). In determining whether a particular exercise of state-court jurisdiction is consistent with due process, the inquiry must focus on "the relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner, supra, 433 U.S., at 204, 97 S.Ct., at 2580. 12 It is conceded that Rush has never had any contacts with Minnesota, and that the auto accident that is the subject of this action occurred in Indiana and also had no connection to Minnesota. The only affiliating circumstance offered to show a relationship among Rush, Minnesota, and this lawsuit is that Rush's insurance company does business in the State. Seider constructed an ingenious jurisdictional theory to permit a State to command a defendant to appear in its courts on the basis of this factor alone. State Farm's contractual obligation to defend and indemnify Rush in connection with liability claims is treated as a debt owed by State Farm to Rush. The legal fiction that assigns a situs to a debt, for garnishment purposes, wherever the debtor is found is combined with the legal fiction that a corporation is "present," for jurisdictional purposes, wherever it does business to yield the conclusion that the obligation to defend and indemnify is located in the forum for purposes of the garnishment statute. The fictional presence of the policy obligation is deemed to give the State the power to determine the policyholder's liability for the out-of-state accident.14 13 We held in Shaffer that the mere presence of property in a State does not establish a sufficient relationship between the owner of the property and the State to support the exercise of jurisdiction over an unrelated cause of action. The ownership of property in the State is a contact between the defendant and the forum, and it may suggest the presence of other ties. 433 U.S., at 209, 97 S.Ct., at 2582. Jurisdiction is lacking, however, unless there are sufficient contacts to satisfy the fairness standard of International Shoe. 14 Here, the fact that the defendant's insurer does business in the forum State suggests no further contacts between the defendant and the forum, and the record supplies no evidence of any. State Farm's decision to do business in Minnesota was completely adventitious as far as Rush was concerned. He had no control over that decision, and it is unlikely that he would have expected that by buying insurance in Indiana he had subjected himself to suit in any State to which a potential future plaintiff might decide to move. In short, it cannot be said that the defendant engaged in any purposeful activity related to the forum that would make the exercise of jurisdiction fair, just, or reasonable, see Kulko v. California Superior Court, 436 U.S. 84, 93-94, 98 S.Ct. 1690, 1697-98, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958), merely because his insurer does business there. 15 Nor are there significant contacts between the litigation and the forum. The Minnesota Supreme Court was of the view that the insurance policy was so important to the litigation that it provided contacts sufficient to satisfy due process.15 The insurance policy is not the subject matter of the case, however, nor is it related to the operative facts of the negligence action. The contractual arrangements between the defendant and the insurer pertain only to the conduct, not the substance of the litigation, and accordingly do not affect the court's jurisdiction unless they demonstrate ties between the defendant and the forum. 16 In fact, the fictitious presence of the insurer's obligation in Minnesota does not, without more, provide a basis for concluding that there is any contact in the International Shoe sense between Minnesota and the insured. To say that "a debt follows the debtor" is simply to say that intangible property has no actual situs, and a debt may be sued on wherever there is jurisdiction over the debtor. State Farm is "found," in the sense of doing business, in all 50 States and the District of Columbia. Under appellee's theory, the "debt" owed to Rush would be "present" in each of those jurisdictions simultaneously. It is apparent that such a "contact" can have no jurisdictional significance. 17 An alternative approach for finding minimum contacts in Seider -type cases, referred to with approval by the Minnesota Supreme Court,16 is to attribute the insurer's forum contacts to the defendant by treating the attachment procedure as the functional equivalent of a direct action against the insurer. This approach views Seider jurisdiction as fair both to the insurer, whose forum contacts would support in personam jurisdiction even for an unrelated cause of action, and to the "nominal defendant." Because liability is limited to the policy amount, the defendant incurs no personal liability,17 and the judgment is satisfied from the policy proceeds which are not available to the insured for any purpose other than paying accident claims, the insured is said to have such a slight stake in the litigation as a practical matter that it is not unfair to make him a "nominal defendant" in order to obtain jurisdiction over the insurance company. 18 Seider actions are not equivalent to direct actions, however.18 The State's ability to exert its power over the "nominal defendant" is analytically prerequisite to the insurer's entry into the case as a garnishee. If the Constitution forbids the assertion of jurisdiction over the insured based on the policy, then there is no conceptual basis for bringing the "garnishee" into the action. Because the party with forum contacts can only be reached through the out-of-state party, the question of jurisdiction over the nonresident cannot be ignored.19 Moreover, the assumption that the defendant has no real stake in the litigation is far from self-evident.20 19 The Minnesota court also attempted to attribute State Farm's contacts to Rush by considering the "defending parties" together and aggregating their forum contacts in determining whether it had jurisdiction.21 The result was the assertion of jurisdiction over Rush based solely on the activities of State Farm. Such a result is plainly unconstitutional. Naturally, the parties' relationships with each other may be significant in evaluating their ties to the forum. The requirements of International Shoe, however, must be met as to each defendant over whom a state court exercises jurisdiction. 20 The justifications offered in support of Seider jurisdiction share a common characteristic: they shift the focus of the inquiry from the relationship among the defendant, the forum, and the litigation to that among the plaintiff, the forum, the insurer, and the litigation. The insurer's contacts with the forum are attributed to the defendant because the policy was taken out in anticipation of such litigation. The State's interests in providing a forum for its residents and in regulating the activities of insurance companies are substituted for its contacts with the defendant and the cause of action. This subtle shift in focus from the defendant to the plaintiff is most evident in the decisions limiting Seider jurisdiction to actions by forum residents on the ground that permitting nonresidents to avail themselves of the procedure would be unconstitutional.22 In other words, the plaintiff's contacts with the forum are decisive in determining whether the defendant's due process rights are violated. 21 Such an approach is forbidden by International Shoe and its progeny. If a defendant has certain judicially cognizable ties with a State, a variety of factors relating to the particular cause of action may be relevant to the determination whether the exercise of jurisdiction would comport with "traditional notions of fair play and substantial justice." See McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); cf. Kulko v. California Superior Court, 436 U.S., at 98-101, 98 S.Ct., at 1700-1701. Here, however, the defendant has no contacts with the forum, and the Due Process Clause "does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 160. The judgment of the Minnesota Supreme Court is, therefore, 22 Reversed. 23 Mr. Justice STEVENS, dissenting. 24 As the Court notes, appellant Rush had no contact with Minnesota that would support personal jurisdiction over him in that State. Ante, at 322. Moreover, Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683, precludes the assertion of quasi in rem jurisdiction over his property in that forum if the intangible property attached is unrelated to the action. It does not follow, however, that the plaintiff may not obtain quasi in rem jurisdiction over appellant's insurance policy, since his carrier does business in Minnesota and since it has also specifically contracted in the policy attached to defend the very litigation that plaintiff has instituted in Minnesota. 25 In this kind of case, the Minnesota statute authorizing jurisdiction is correctly characterized as the "functional equivalent" of a so-called direct-action statute. The impact of the judgment is against the insurer.* I believe such a direct-action statute is valid as applied to a suit brought by a forum resident, see Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 72, 75 S.Ct. 166, 169, 99 L.Ed. 74, even if the accident giving rise to the action did not occur in the forum State, see Minichiello v. Rosenberg, 410 F.2d 106 (CA2 1968), cert. denied, 396 U.S. 844, 90 S.Ct. 69, 24 L.Ed.2d 94, so long as it is understood that the forum may exercise no power whatsoever over the individual defendant. As so understood, it makes no difference whether the insurance company is sued in its own name or, as Minnesota law provides, in the guise of a suit against the individual defendant. 26 In this case, although appellant Rush may have a contractual obligation to his insurer to appear in court to testify and generally to cooperate in the defense of the lawsuit, it is my understanding that Minnesota law does not compel him to do so through the contempt power or otherwise. Moreover, any judgment formally entered against the individual defendant may only be executed against the proceeds of his insurance policy. In my opinion, it would violate the Due Process Clause to make any use of such a judgment against that individual—for example, by giving the judgment collateral-estoppel effect in a later action against him arising from the same accident. Accord, Minichiello v. Rosenberg, supra, at 112; Note, The Constitutionality of Seider v. Roth after Shaffer v. Heitner, 78 Colum.L.Rev. 409, 418-419 (1978). But we are not now faced with any problem concerning use of a quasi in rem judgment against an individual defendant personally. I am therefore led to the conclusion that the Federal Constitution does not require the Minnesota courts to dismiss this action. 1 Savchuk moved to Pennsylvania after this appeal was filed. 2 The suit was filed after the 2-year Indiana statute of limitations had run. 272 N.W.2d 888, 891, n. 5 (1978). 3 Minnesota Stat. § 571.41, subd. 2 (1978), provides in relevant part: "Notwithstanding anything to the contrary herein contained, a plaintiff in any action in a court of record for the recovery of money may issue a garnishee summons before judgment therein in the following instances only: * * * * * "(b) If the court shall order the issuance of such summons, if a summons and complaint is filed with the appropriate court and either served on the defendant or delivered to a sheriff for service on the defendant not more than 30 days after the order is signed, and if, upon application to the court it shall appear that: * * * * * "(2) The purpose of the garnishment is to establish quasi in rem jurisdiction and that * * * * * "(b) defendant is a nonresident individual, or a foreign corporation, partnership or association. "(3) The garnishee and the debtor are parties to a contract of suretyship, guarantee, or insurance, because of which the garnishee may be held to respond to any person for the claim asserted against the debtor in the main action. The Minnesota Supreme Court cited this version of the statute, enacted in 1976, in its opinion in 272 N.W.2d 888 (1978) (Savchuk II ). The version of the statute that was in effect at the time of the original opinion, 311 Minn. 480, 245 N.W.2d 624 (1976) (Savchuk I), does not differ in any important respect. 4 State Farm is an Illinois corporation that does business in all 50 States, the District of Columbia, and several Canadian Provinces. The Insurance Almanac 431-432 (1977). 5 The prayer was later reduced voluntarily to $50,000, the face amount of the policy. 6 Minnesota Stat. § 571.495 (1978) requires the garnishee to disclose the amount of his debt to the defendant. Section 571.51 provides in relevant part: "[I]n all . . . cases where the garnishee denies liability, the judgment creditor may move the court at any time before the garnishee is discharged, on notice to both the judgment debtor and the garnishee, for leave to file a supplemental complaint making the latter a party to the action, and setting forth the facts upon which he claims to charge him; and, if probable cause is shown, such motion shall be granted. . . ." Minn.Stat. § 571.51 (1978). The party-garnishee is not a defendant. 7 The motion to dismiss also alleged lack of subject-matter jurisdiction, insufficiency of process, and insufficiency of service of process. 8 Minnesota would apply its own comparative negligence law, rather than Indiana's contributory negligence rule. See Schwartz v. Consolidated Freightways Corp., 300 Minn. 487, 221 N.W.2d 665 (1974). Appellants assert that Minnesota would also decline to apply the Indiana guest statute if this case were tried in Minnesota. Juris. Statement 10, n. 2; cf. Savchuk II, supra, 272 N.W.2d, at 891-892. The constitutionality of a choice-of-law rule that would apply forum law in these circumstances is not before us. Cf. Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930). 9 272 N.W.2d, at 891. 10 Baden v. Staples, 45 N.Y.2d 889, 410 N.Y.S.2d 808, 383 N.E.2d 110 (1978). The State has declined, however, to make the attachment procedure available to nonresident plaintiffs. Donawitz v. Danek, 42 N.Y.2d 138, 397 N.Y.S.2d 592, 366 N.E.2d 253 (1977). 11 Forbes v. Boynton, 113 N.H. 617, 313 A.2d 129 (1973). But cf. Rocca v. Kenney, 117 N.H. 1057, 381 A.2d 330 (1977). 12 Camire v. Scieszka, 116 N.H. 281, 358 A.2d 397 (1976). 13 The practice has been rejected, based on state law or constitutional grounds, in Belcher v. Government Employees Ins. Co., 282 Md. 718, 387 A.2d 770 (1978); Javorek v. Superior Court, 17 Cal.3d 629, 131 Cal.Rptr. 768, 552 P.2d 728 (1976); Hart v. Cote, 145 N.J.Super. 420, 367 A.2d 1219 (Law Div.1976); Grinnell v. Garrett, 295 So.2d 496 (La.App.1974); Johnson v. Farmers Alliance Mutual Ins. Co., 499 P.2d 1387 (Okl.1972); State ex rel. Government Employees Ins. Co. v. Lasky, 454 S.W.2d 942 (Mo.App.1970); Howard v. Allen, 254 S.C. 455, 176 S.E.2d 127 (1970); De Rentiis v. Lewis, 106 R.I. 240, 258 A.2d 464 (1969); Housley v. Anaconda Co., 10 Utah 2d 124, 427 P.2d 390 (1967); Jardine v. Donnelly, 413 Pa. 474, 198 A.2d 513 (1964). See also Tessier v. State Farm Mutual Ins. Co., 458 F.2d 1299 (CA1 1972); Kirchman v. Mikula, 443 F.2d 816 (CA5 1971); Robinson v. O. F. Shearer & Sons, 429 F.2d 83 (CA3 1970); Sykes v. Beal, 392 F.Supp. 1089 (Conn.1975); Ricker v. Lajoie, 314 F.Supp. 401 (Vt.1970). 14 The conclusion that State Farm's obligation under the insurance policy was garnishable property is a matter of state law and therefore is not before us. Assuming that it was garnishable property, the question is what significance that fact has to the relationship among the defendant, the forum, and the litigation. 15 The court explained: "In the instant case, the insurer's obligation to defend and indemnify, while theoretically separable from the tort action, has no independent value or significance apart from accident litigation. In the accident litigation, however, it is inevitably the focus, determining the rights and obligation [sic ] of the insurer, the insured, and practically speaking, the victim." Savchuk II, 272 N.W.2d, at 892 (emphasis in original). The court considered the "practical relationship between the insurer and the nominal defendant," ibid., the limitation of liability to the policy amount, and the restriction of the garnishment procedure to resident plaintiffs, and concluded that "the relationship between the defending parties, the litigation, and the forum state," id., at 893, was sufficient to sustain the exercise of jurisdiction. 16 Id., at 892-893; but see Savchuk I, 311 Minn., at 488, 245 N.W.2d, at 629. 17 See Savchuk II, 272 N.W.2d, at 892; Simpson v. Loehmann, 21 N.Y.2d 990, 991, 290 N.Y.S.2d 914, 916, 238 N.E.2d 319, 320 (1968). 18 In Savchuk I, the Minnesota Supreme Court rejected Rush's argument that the garnishment procedure amounted to a direct action, observing: "The defendant, not the insurer, is the party sued. There is nothing in the statute which suggests that the insurer should be named as a defendant." 311 Minn., at 488, 245 N.W.2d, at 629. See n. 6, supra. 19 Compare the direct action statute upheld in Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954), which was applicable only if the accident or injury occurred in the State or the insured was domiciled there and which permitted the plaintiff to sue the insurer alone, without naming the insured as a defendant. Id., at 68, n. 4, 75 S.Ct., at 168, n. 4. 20 A party does not extinguish his legal interest in a dispute by insuring himself against having to pay an eventual judgment out of his own pocket. Moreover, the purpose of insurance is simply to make the defendant whole for the economic costs of the lawsuit; but noneconomic factors may also be important to the defendant. Professional malpractice actions, for example, question the defendant's integrity and competence and may affect his professional standing. Cf. Donawitz v. Danek, 42 N.Y.2d 138, 397 N.Y.S.2d 592, 366 N.E.2d 253 (1977) (medical malpractice action premised on Seider jurisdiction dismissed because plaintiff was a nonresident). Further, one can easily conceive of cases in which the defendant might have a substantial economic stake in Seider litigation—if, for example, multiple plaintiffs sued in different States for an aggregate amount in excess of the policy limits, or if a successful claim would affect the policyholder's insurability. For these reasons, the defendant's interest in the adjudication of his liability cannot reasonably be characterized as de minimis. 21 The court stated: "We view as relevant the relationship between the defending parties, the litigation, and the forum state. It cannot be said that Minnesota lacks such minimally-requisite 'contacts, ties or relations' to those defending parties as to offend the requirements of due process." Savchuk II, 272 N.W.2d, at 893 (emphasis added). 22 See, e. g., Farrell v. Piedmont Aviation, Inc., 411 F.2d 812 (CA2 1969); Rintala v. Shoemaker, 362 F.Supp. 1044 (Minn.1973); Donawitz v. Danek, supra ; Savchuk I. * It seems to me that the possible impact of a default judgment on the reputation of an individual, see ante, at 331, n. 20, who has no contacts whatever with the forum State is far too remote to affect the analysis of the constitutional issue in this case.

34

444 U.S. 437 100 S.Ct. 716 62 L.Ed.2d 626 Nolan ESTES et al., petitioners,v.METROPOLITAN BRANCHES OF DALLAS NAACP et al., Donald E. CURRY et al., petitioners, v. METROPOLITAN BRANCHES OF DALLAS NAACP et al., Ralph F. BRINEGAR et al., petitioners, v. METROPOLITAN BRANCHES OF DALLAS NAACP et al No. 78-253 No.78-282 No.and 78-283 Supreme Court of the United States January 21, 1980 On Writs of Certiorari to the United States Court of Appeals for the Fifth Circuit. PER CURIAM. 1 The writs of certiorari are dismissed as improvidently granted. 2 Mr. Justice POWELL, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST join, dissenting. 3 The Court today dismisses the writs previously granted in this litigation and thereby reinstates the ruling of the Court of Appeals. The suit now will be returned to the District Court for elaboration of that court's conclusions on the feasibility of extensive busing to achieve racial balance in the Dallas public schools. The Court of Appeals directed the trial court to supplement the record with formal studies of the anticipated times and distances of likely bus routes, and to make additional findings on desegregation in the city's high schools. 4 Although the remand is narrow, aimed solely at the sufficiency of the record on which the District Court based its desegregation order, I do not think it is justified. After studying the schools of the Dallas Independent School District through the many years of this litigation, the trial judge drew on his familiarity with Dallas and its schools, and on the advice of many community groups, to fashion an effective and fair desegregation order. The Court of Appeals failed to accord proper deference to the District Court's conscientious execution of this delicate task. 5 In addition, this case presents a long-needed opportunity to re-examine the considerations relevant to framing a remedy in a desegregation suit. It is increasingly evident that use of the busing remedy to achieve racial balance can conflict with the goals of equal educational opportunity and quality schools. In all too many cities, well-intentioned court decrees have had the primary effect of stimulating resegregation. The experience in Dallas during this litigation presents a striking illustration of this problem. If the District Court orders substantial additional busing, as the Court of Appeals apparently thinks it should, recent history suggests that the Dallas school district will be well on the road to the "separate but equal" conditions mistakenly approved in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). Such an outcome is no less real or less regrettable when caused by courts with benign motives. The promise of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), cannot be fulfilled by continued imposition of self-defeating remedies. 6 * The Dallas Independent School District (School District) has been in desegregation litigation since 1955, although the present case is not part of the original suit. During this quarter of a century, the School District has grown into the eighth largest school district in the country, covering 351 square miles and spanning 35 miles at its widest point. Since the present action first was tried in 1971, the student population of the district has changed dramatically. Total enrollment has dropped from 163,000 to 133,000, while the racial distribution of students has shifted from 69% Anglo in 1971 to 33.5% Anglo, 49.1% black, and 16.3% Mexican-American in 1979. There were 112,000 Anglo students in the School District in 1970; there are now fewer than 45,000. 7 This suit was brought by several parents, acting on behalf of their children, against the superintendent and the Board of Trustees of the School District (Board). Other parents groups have intervened in the suit.1 In the summer of 1971, the District Court found that "elements" of a segregated school system "still remain" in the Dallas schools. Tasby v. Estes, 342 F.Supp. 945, 947 (ND Tex.1971). The court imposed a number of remedies, including the busing of approximately 15,000 students. The original plaintiffs appealed to the Court of Appeals for the Fifth Circuit for more extensive reassignment and transportation of pupils. That court declared that "nothing less than the elimination of predominantly one-race schools is constitutionally required. . . ." Tasby v. Estes, 517 F.2d 92, 103, cert. denied, 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975). Finding that the District Court's decree failed to satisfy this standard, the Court of Appeals remanded for the formulation of a new desegregation plan. 8 In a month-long trial on remand, the District Court considered in detail six plans submitted by the various parties and a court-appointed expert. It heard nearly 50 witnesses, including numerous experts, and produced a trial transcript of some 4,000 pages. The court also conferred with concerned community groups, the most prominent of which was the Educational Task Force of the Dallas Alliance (Alliance), a multiracial, nonpartisan organization.2 In a thorough opinion, Tasby v. Estes, 412 F.Supp. 1192 (ND Tex.1976), the District Court found that the decline in Anglo enrollment between 1971 and 1976 was not the result of actions taken by the Board. In fact, the court noted the Board's continuing "good faith" efforts to establish a unitary school system. Id., at 1207. See Pasadena City Bd. of Education v. Spangler, 427 U.S. 424, 435-436, 96 S.Ct. 2697, 2704-2705, 49 L.Ed.2d 599 (1976). The court's duty, it asserted, was to adopt a plan that would "realistically and effectively" achieve desegregation in light of demographic changes in the School District. 412 F.Supp. at 1207. 9 With careful attention to the special characteristics and history of the School District, the District Court promulgated a progressive and comprehensive plan that drew heavily on the proposals of the Alliance.3 For purposes of student assignment, the plan divides the School District into six subdistricts. In integrated areas within each subdistrict, present student assignments are retained wherever possible. In other areas, children in grades K-3 remain in neighborhood schools; those in grades 4-8 are assigned to central schools in each subdistrict; and high school students are assigned to schools in their own subdistricts on the basis of geographical attendance zones. The plan provides for a number of "magnet high schools" that offer enriched educational programs.4 The pupil assignment plan is supplemented by majority-to-minority transfers upon request.5 10 This case now focuses on student assignment and busing.6 Each of the six plans considered by the District Court provided for substantial busing.7 Although the court did not estimate the number of pupils to be bused under its decree, the Alliance proposal which paralleled the court's plan anticipated the busing of some 20,000 students. The court concluded that the racial composition of the student population in each subdistrict "will approximate the racial makeup of the [district] as a whole, with the exception of [East] Oak Cliff," a black neighborhood. Id., at 1204. 11 Respondents argue that the District Court's plan leaves 62 schools, about one-third of the 176 schools in the district, with "one-race" student bodies (defined as those where more than 75% of the students are of one race).8 Fifty-two of these schools would be predominantly black, nine Anglo, and one Mexican-American. A majority of these one-race schools result from the District Court's refusal to bus very young children.9 This Court has recognized that concern for the health and welfare of younger children may dictate their exclusion from student transportation plans, see Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 31, 91 S.Ct. 1267, 1283, 28 L.Ed.2d 554 (1971), and respondents do not dispute that feature of the District Court order. In addition, several high schools have one-race student bodies because the District Court declined to order the busing of high school students. It noted that "of approximately 1,000 Anglos ordered to be transported to formerly all-black high schools under this Court's 1971 student assignment plan, fewer than 50 Anglo students attend those schools today." 412 F.Supp., at 1205. The court also concluded that the establishment of magnet high schools was the "most realistic, feasible, and effective method for eliminating the remaining vestiges of a dual [school] system on the 9-12 level. . . ." Ibid. 12 Viewed on a geographic basis, the order left 28 "predominantly black" schools in East Oak Cliff, which is bounded by the Trinity River bottom on one side and by Interstate 35 on the other. The court found that the "practicalities of time and distance" prevent the effective integration of the schools in this neighborhood through busing. Id., at 1204. In contrast, the Seagoville subdistrict remains predominantly white. Seagoville, however, is "geographically isolated" from the rest of the city, Tasby v. Estes, 572 F.2d 1010, 1013 (CA5 1978), and its school population represents less than 2% of the School District's student body. 13 The Court of Appeals was not impressed by the District Court's carefully structured plan. It concentrated almost exclusively on the "large number of one-race schools" remaining in Dallas. Id., at 1012. 14 "We cannot properly review any student assignment plan that leaves many schools in a system one race without specific findings by the district court as to the feasibility of [student assignment] techniques. . . . There are no adequate time-and-distance studies in the record in this case. Consequently, we have no means of determining whether the natural boundaries and traffic considerations preclude either the pairing and clustering of schools or the use of transportation to eliminate the large number of one-race schools still existing." Id., at 1014. 15 The Court of Appeals remanded "for the formulation of a new student assignment plan and for findings to justify the maintenance of any one-race schools that may be part of that plan." Id., at 1018 (emphasis added). II 16 The duration and complexity of this litigation demonstrate the difficulty of providing effective relief in a school desegregation case. The school board and the court must consider many economic, social, and educational factors, and those factors vary widely from community to community. Courts frequently are caught between the constitutional prohibition against segregation and the severe limitations on their ability to implement an effective plan with public support. See Columbus Bd. of Education v. Penick, 443 U.S. 449, 486-488, 99 S.Ct. 2982, 2991, 61 L.Ed.2d 666 (1979) (POWELL, J., dissenting). Consequently, this Court has been reluctant to give more than general instructions for desegregation orders, and those instructions have not always been completely consistent.10 The result in too many instances has been confusion in the lower courts. See infra, at 449-450. 17 I believe that two rules provide the basic outline for responsible exercise of the courts' equitable powers in school desegregation cases. First, "the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation." Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (Milliken II). The constitutional deprivation must be identified accurately, and the remedy must be related closely to that deprivation. Otherwise, a desegregation order may exceed both the power and the competence of courts. Second, "[t]he measure of any desegregation plan is its effectiveness." Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). A court must act decisively to remove purposeful segregation, but it also must avoid the danger of inciting resegregation by unduly disrupting the public schools. 18 Much of the confusion that has plagued this litigation derives from neglect of these principles. The District Court failed to identify the link between the constitutional violation and the desegregation remedy, and the Court of Appeals showed little concern for either that problem or the question of effectiveness. Unless courts carefully consider those issues, judicial school desegregation will continue to be a haphazard exercise of equitable power that can, "like a loose cannon, . . . inflict indiscriminate damage" on our schools and communities.11 19 The opinion of the Court of Appeals focuses almost entirely on the one-race schools remaining in the School District. This preoccupation apparently derives from the oft-repeated language in Green v. County School Board, 391 U.S. 430, 442, 88 S.Ct. 1689, 1696, 20 L.Ed.2d 716 (1968), that desegregation must create "a system without a 'white' school [or] a 'Negro' school." As I have noted before, this language was suitable to the small rural county before the Court in that case, where there were only two schools and 1,300 schoolchildren of both races scattered throughout the county. But it makes no sense to apply that statement to the Dallas Independent School District or any major metropolitan school district. In large cities, the principal cause of segregation in the schools is residential segregation, which results largely from demographic and economic conditions over which school authorities have no control. E. g., Pasadena City Bd. of Education v. Spangler, 427 U.S., at 435-437, 96 S.Ct., at 2704-2705; see Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 222-223, 93 S.Ct. 2686, 2704-2705, 37 L.Ed.2d 548 (1973) (POWELL, J., concurring in part and dissenting in part).12 In cases since Green, the Court has stated explicitly that the existence of "predominantly white or predominantly black [schools,] without more, . . . does not offend the Constitution." Dayton Bd. of Education v. Brinkman, 433 U.S. 406, 417, 97 S.Ct. 2766, 2774, 53 L.Ed.2d 851 (1977); Milliken II, supra, 433 U.S., at 280, n. 14, 97 S.Ct., at 2757; Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S., at 26, 91 S.Ct., at 1281.13 It is puzzling that many trial and appellate courts continue to misapply Green and largely to ignore more recent statements on this issue. 20 The important distinction is between "desegregated" schools and "integrated" schools. There can be no legitimate claim that "racial balance" in the public schools is constitutionally required. Milliken v. Bradley, 418 U.S. 717, 740-741, 94 S.Ct. 3112, 3125, 41 L.Ed.2d 1069 (1974) (Milliken I). Rather, the Constitution mandates that no school system be structured to segregate the races. The proposition was stated fully in Swann : 21 "Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools." 402 U.S., at 23, 91 S.Ct., at 1279. 22 The question in these cases, as in countless others, is how equitably to remedy unconstitutional state action or inaction. A desegregation decree "must be designed as nearly as possible 'to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' " Milliken II, supra, 433 U.S., at 280, 97 S.Ct., at 2757, quoting Milliken I, supra, 418 U.S., at 746, 94 S.Ct., at 3128. But the courts cannot pursue this goal responsibly without identifying those features of the current situation that can be attributed to the previous dual system.14 23 In this litigation, the District Court ordered the busing of 15,000 students in 1971, 342 F.Supp., at 956, while the current decree is likely to result in the transportation of some 20,000 students. See supra, at 442. On the record before us, we cannot determine whether the trial court made findings of constitutional violations that justified these and other remedies that were ordered. For the purpose of deciding the cases in this Court, we may assume that such violations were duly found. In any event, since the 1975 ruling of the District Court this litigation has concentrated solely on the need to eliminate one-race schools through further busing. The petition for certiorari raised only that issue, see Pet. for Cert. in No. 78-253, pp. 2-3, and both the Board, the principal petitioner here, and the Dallas Alliance have asked only that the District Court's order be reinstated. See Brief for Petitioners in No. 78-253, pp. 71-72; Brief for Dallas Alliance as Amicus Curiae 28. Consequently, I believe this Court should reach the merits of the remedial question and review the decision of the Court of Appeals that the District Court must explain why "any" one-race schools remain in Dallas. 572 F.2d, at 1018. B 24 Court orders to remedy constitutional deprivations in formerly segregated school systems must be drawn "in light of the circumstances present and the options available," Green v. County School Board, 391 U.S., at 439, 88 S.Ct., at 1695, "taking into account the practicalities of the situation." Davis v. School Comm'rs of Mobile County, 402 U.S., at 37, 91 S.Ct., at 1292. Although this Court's guidance in desegregation cases necessarily has been general, its emphasis on effectiveness and practicalities reflects an appreciation that perfect solutions may be unattainable in the context of the demographic, geographic, and sociological complexities of modern urban communities. The imperfect nature of court action in school cases is evident in the phenomenon of self-defeating "remedies," desegregation plans and continuing court oversight so unacceptable that many parents seek to avoid the reach of the court's decree. The impact of such remedies may be seen in higher enrollment in private schools, in further migration to the suburbs, or in refusals to move into the school district. 25 This Court has not considered seriously the relationship between the resegregation problem and desegregation decrees. The most helpful precedent is Pasadena City Bd. of Education v. Spangler, which arose several years after a local desegregation plan had been implemented.15 We held in that case that the Constitution does not require that a desegregation decree be modified periodically as migration patterns shift the distribution of the races within the school district. The Court recognized that, absent further segregation by the State, there is no constitutional obligation to remedy resegregation after an approved plan is implemented. That holding accents the need for courts to consider with care the impact a remedy is likely to have on resegregation. As Pasadena establishes, once resegregation occurs without state action courts have no power to impose an additional remedy. 26 Surprisingly few courts, however, have understood this imperative. One exception is the decision on remand in Milliken I, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), where a desegregation plan that left many one-race schools was approved by the Court of Appeals for the Sixth Circuit. The court explained that the available alternatives would have "accelerate[d] the trend toward rendering all or nearly all of Detroit's schools so identifiably black as to represent universal school segregation. . . . " Bradley v. Milliken, 540 F.2d 229, 239 (1976), aff'd, Milliken II, supra.16 In a case involving a school district in Alabama, however, the Court of Appeals for the Fifth Circuit approved a plan " 'that will probably result in an all-black student body, where nothing in the way of desegregation is accomplished and where neither the white students nor black students are benefited.' " Lee v. Macon County Bd. of Education, 465 F.2d 369, 370 (1972). Even though the court acknowledged that the remedy was self-defeating, it ordered the plan implemented unless the local school board could come forward with a plan "equally effective" in eliminating one-race schools. Ibid.17 27 The pursuit of racial balance at any cost—the unintended legacy of Green —is without constitutional or social justification. Out of zeal to remedy one evil, courts may encourage or set the stage for other evils. By acting against one-race schools, courts may produce one-race school systems. Parents with school-age children are highly motivated to seek access to schools perceived to afford quality education. A desegregation plan without community support, typically one with objectionable transportation requirements and continuing judicial oversight, accelerates the exodus to the suburbs of families able to move. The children of families remaining in the area affected by the court's decree are denied the opportunity to be part of an ethnically diverse student body. See Parents Assn. of Andrew Jackson High School v. Ambach, 598 F.2d 705, 717 (CA2 1979). The general quality of the schools also tends to decline when substantial elements of the community abandon them. 28 The effects of resegregation can be even broader, reaching beyond the quality of education in the inner city to the life of the entire community. When the more economically advantaged citizens leave the city, the tax base shrinks and all city services suffer. And students whose parents elect to live beyond the reach of the court decree lose the benefits of attending ethnically diverse schools, an experience that prepares a child for citizenship in our pluralistic society.18 III 29 The District Court in this litigation was properly concerned over resegregation and community support for the Dallas schools.19 The facts before the court made that concern unavoidable. In the five years following the 1971 desegregation decree, the proportion of Anglo students in the Dallas public schools had dropped by almost half. That destabilizing trend has continued in the School District, as reflected by the following figures: Year Percentage of Anglo Students 30 1971 69% 31 1975 41.1% 1979 33.5%20 32 In view of these far-reaching demographic changes, the futility of administering larger doses of a remedy that has failed is self-evident. In this situation, I can see no justification for reverting now to "time and distance studies" with the goal of attaining increased racial balance through additional busing. 33 A desegregation remedy that does not take account of the social and educational consequences of extensive student transportation can be neither fair nor effective. The District Court's plan is properly sensitive both to existing demographic realities and to the likely consequences of increased busing. The Court of Appeals seriously erred when it remanded this case with a mandate that seems certain to accelerate the destructive trend toward resegregation. 34 As this Court should not tolerate this error, even by silence that might give rise to an inference of approval, I dissent from the Court's failure to decide the case and reinstate the District Court's plan—a plan that does have promise for success. 1 The original plaintiffs, respondents here, represent a class of black and Mexican-American students. The Curry petitioners represent a group of North Dallas pupils, and the Brinegar petitioners represent a class of persons living in an integrated area of East Dallas. 2 The Task Force consisted of seven Mexican-Americans, seven Anglos, six blacks, and one American Indian. The Dallas Alliance comprises 77 cooperating organizations, including local branches of the AFL-CIO and the Chamber of Commerce, religious groups, civic organizations, and several local chapters of the NAACP. The Alliance Task Force proposed a comprehensive desegregation plan that largely was adopted by the District Court. Of course, a group's participation in the Alliance need not signify approval of the desegregation plan proposed by the Educational Task Force, but the Alliance clearly has many ties to the entire Dallas community. 3 In a brief amicus curiae to the Court, the Alliance stated that the plan submitted by its Educational Task Force "reflects compromise" and was reached by consensus. Brief for Dallas Alliance as Amicus Curiae 21. 4 The District Court ordered the School District to establish seven new magnet high schools by 1979. Each must offer special career training, and the racial makeup of each school must be within 10% of the racial distribution of the School District's high school population. Tasby v. Estes, 412 F.Supp. 1192, 1215-1216 (ND Tex.1976). Free transportation is available for students at magnet schools. 5 The Court of Appeals correctly determined that the District Court's plan is deficient in not explicitly providing transportation at public expense to children who exercise this option. Tasby v. Estes, 572 F.2d 1010, 1015 (CA5 1978). 6 The initial District Court ruling also dealt, apparently to the satisfaction of the plaintiffs, with staff desegregation, school construction, bilingual education for Mexican-Americans, and other programs designed to supplement the opportunities of minority students. Tasby v. Estes, 342 F.Supp. 945, 953 (ND Tex.1971). These matters are no longer issues in this litigation. 7 The estimates of the number of students to be bused ranged from 14,000 under the plan originally proposed by the Board to 69,000 under the NAACP plaintiffs' Plan A. 8 Tr. of Oral Arg. 46. 9 In their brief to this Court, the NAACP respondents concede that more than half of the one-race schools are in the elementary grade, K-3 category. Brief for Respondents NAACP et al. 9. 10 See Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 42 Law & Contemp.Prob. 57, 87-102 (Autumn 1978). 11 The language quoted comes from Mr. Justice STEWART's dissenting opinion in Stump v. Sparkman, 435 U.S. 349, 367, 98 S.Ct. 1099, 1110, 55 L.Ed.2d 331 (1978). 12 See Coleman, New Incentives for Desegregation, 7 Human Rights 10, 11 (Fall 1978); Farley, Residential Segregation and Its Implications for School Integration, 39 Law & Contemp.Prob. 164 (Winter 1975). 13 Some federal courts continue to read Swann v. Charlotte-Mecklenburg Bd. of Education, as requiring extensive transportation because of its language endorsing the need "to achieve the greatest possible degree of actual desegregation." 402 U.S., at 26, 91 S.Ct., at 1281. Swann, however, simply laid down a broad rule of reason under which desegregation remedies must remain flexible and due consideration must be given to other values and interests. In Swann, we recognized that special difficulties arise when extensive busing is used in metropolitan areas "with dense and shifting population[s], numerous schools, [and] congested and complex traffic patterns." Id., at 14, 91 S.Ct., at 1275. Although Swann approved pupil transportation as a remedial device, the Court said that transportation orders would be suspect "when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process." Id., at 30-31, 91 S.Ct., at 1283. The Court's more recent decisions have dispelled any doubt that may have existed as to whether Swann mandates busing to establish racial balance. In this regard, one should note that the Court of Appeals in this case failed to mention Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I), Dayton Bd. of Education v. Brinkman, or Milliken II, while it relied heavily, and mistakenly, upon Green. Tasby v. Estes, 517 F.2d 92, 103 (1975). 14 Last Term, the Court decided school desegregation cases from Columbus and Dayton, Ohio. Columbus Bd. of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2982, 61 L.Ed.2d 666 (1979); Dayton Bd. of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (Dayton II) (1979). As the dissent by Mr. Justice REHNQUIST argued, the opinions in those cases appeared to depart from prior precedents of this Court. But instead of criticizing either the reasoning or the holdings of any of those cases, the Court simply avoided their force by accepting uncritically the findings made by the courts below. In Columbus, it emphasized that the District Court had found "purposefully segregative practices with current, system-wide impact." 443 U.S., at 446, 99 S.Ct., at 2951, citing 429 F.Supp. 229, 252, 259-260, 264, 266 (SD Ohio 1977). Although the District Court had made no such findings in Dayton II, the Court of Appeals for the Sixth Circuit tailored its own factual findings to accord with those in Columbus, and these again were adopted by this Court. 443 U.S., at 538-540, 99 S.Ct., at 2979-2980. In the instant case, neither the District Court nor the Court of Appeals made comparable findings. 15 In United States v. Scotland Neck Bd. of Education, 407 U.S. 484, 491, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75 (1972), we disapproved an attempt to create a small new school district within a county conceded to have been operating a dual school system. In a concluding sentence, the Court stated that while the possibility of resegregation "may be cause for deep concern to the respondents, it cannot . . . be accepted as a reason for achieving anything less than complete uprooting of the dual public school system." The Court concluded that the new school district would "interfer[e] with the desegregation of the . . . [c]ounty [s]chool system." Id., at 489, 92 S.Ct., at 2217. Given the context of the Court's passing reference to resegregation, Scotland Neck affords no guidance for the more usual desegregation case. 16 See Mapp v. Chattanooga Bd. of Education, 525 F.2d 169 (CA6 1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3199, 49 L.Ed.2d 1203 (1976). The California Supreme Court has expressly authorized the consideration of resegregation patterns in designing decrees for school litigation under the State Constitution. Crawford v. Los Angeles Bd. of Education, 17 Cal.3d 280, 308-309, 130 Cal.Rptr. 724, 551 P.2d 28, 47 (1976). 17 The position taken by counsel for one group of respondents in this case is identical to that of the court in Lee v. Macon County Bd. of Education. At oral argument, counsel was asked if he still would support the remand ordered by the Court of Appeals if he were certain that additional busing "would result in these black children next year or the year afterwards . . . going to an all-black school because there wouldn't be any whites or any people of any other color to go to school with [in the District]." Counsel replied that his clients' position would be no different in that situation. Tr. of Oral Arg. 49. 18 As I noted in dissent in the Columbus case, courts are the branch of government least competent to provide long-range solutions to the resegregation problem. Because the causes of segregation in residential housing are usually beyond judicial correction, wider solutions that will be acceptable to concerned parents must be sought by legislators and executive officials. See 443 U.S., at 480-481, 99 S.Ct., at 2988 (POWELL, J., dissenting). See also Coleman, supra n. 12, at 48-49; Willie, Racial Balance or Quality Education?, in School Desegregation, Shadow and Substance 7 (Levinsohn & Wright eds. 1976). 19 The District Court appears to have succeeded in enlisting active support from much of the Dallas community for the desegregation plan. The voters have approved an $80 million school bond issue that will assist in implementing the court's decree. In addition, business and civic organizations have "adopted" 144 schools in a community-wide effort to channel volunteers, equipment, and private money to those schools, and to provide part-time and full-time job opportunities for students in those schools. See Brief for Dallas Alliance as Amicus Curiae 25. 20 The Anglo population in the School District is likely to fall off even more since current Anglo enrollment is highest in the high schools and declines steadily through the lower grades.

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444 U.S. 453 100 S.Ct. 606 62 L.Ed.2d 607 SECRETARY OF the NAVY et al., Petitioners,v.Frank L. HUFF et al. No. 78-599. Jan. 21, 1980. Kent L. Jones, Office of Sol. Gen., Dept. of Justice, Washington, D. C., for petitioners, pro hac vice, by special leave of Court. Alan Dranitzke, Washington, D. C., for respondents. PER CURIAM. 1 The question in this case is whether Navy and Marine Corps regulations violate 10 U.S.C. § 1034 by requiring military personnel on an overseas base to obtain command approval before circulating petitions addressed to Members of Congress. Section 1034 provides that "[n]o person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States." 2 * In 1974, Frank L. Huff, Robert A. Falatine, and Robert E. Gabrielson were serving in the Marine Corps at the United States Marine Corps Air Station in Iwakuni, Japan. On separate occasions, each of them sought the base commander's permission to circulate a petition addressed to a Member of Congress. The petitions dealt with the use of military forces in labor disputes within the United States, amnesty for men who resisted the draft or deserted the Armed Forces during the Vietnam war, and United States support for the Government of South Korea. The first two requests proposed circulation within the base; the last proposed circulation both within and without the base. The commander denied the first two requests, but he allowed the petition about South Korea to circulate within the base. 3 On another occasion, Huff and Falatine each asked to distribute a leaflet annotating the Declaration of Independence and the First Amendment with commentary critical of military commanders who restrict petitioning. The base commander denied Falatine's request on the ground that the commentary was disrespectful and contemptuous, but on the same day and without explanation, he granted Huff leave to distribute the same material. Finally, respondents Huff and Falatine were arrested for circulating outside the base a petition to a Member of Congress that objected to American support for the government of South Korea. They were charged with violating regulations because they had circulated the petition without requesting command approval. Huff was convicted and sentenced to confinement, forfeiture of half-pay, and reduction in grade. The charges against Falatine were dismissed for lack of evidence. 4 The respondents then brought a class action in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief against future enforcement of four Navy and Marine Corps regulations.1 Each regulation provides, in relevant part, that members of the Marine Corps shall not "originate, sign, distribute, or promulgate petitions, publications, . . . or other . . . written material . . . on any military installation on duty or in uniform, or anywhere within a foreign country irrespective of uniform or duty status, unless prior command approval is obtained."2 The respondents contended that this requirement violated 10 U.S.C. § 1034 and the First Amendment. The petitioners conceded that the base commander had misapplied the regulations when he denied respondents permission to circulate their petitions within the base, and the respondents sought no relief for these past wrongs. Thus, the issue presented was the facial validity of the regulations that require prior command approval for petitioning inside and outside the Iwakuni air station. 5 On cross-motions for summary judgment, the court declared the regulations invalid with respect to materials distributed within the base during off-duty hours and away from restricted or work areas. The court upheld the regulations with respect to distributions outside the base. In that situation, the court concluded, command approval was necessary to prevent political activity in violation of the Status of Forces Agreement between the United States and Japan.3 413 F.Supp. 863 (1976). The petitioners appealed, but the respondents did not cross appeal.4 6 The Court of Appeals for the District of Columbia Circuit affirmed in part and vacated in part. 188 U.S.App.D.C. 26, 575 F.2d 907 (1987). It concluded that the only real controversy between the parties concerned the application of the challenged regulations to petitions addressing Members of Congress. The court therefore considered only the validity of the regulations as they affect circulation within the base of petitions to Congress. It held that requiring prior command approval for the circulation of such petitions violated 10 U.S.C. § 1034. That statute, the court concluded, gives both individuals and groups the right to petition Members of Congress. It allows only such restrictions on that right as are "necessary to the security of the United States." Since the record in this case showed that the Iwakuni base was not within "an actual and current combat zone," the court concluded that petitioners had not shown that a prior restraint on petitioning within the base was necessary to the national security. The court therefore did not reach the question whether the command approval requirement also violated the First Amendment. 7 We granted certiorari to consider whether the challenged regulations, as they affect the circulation of petitions within a military base, violate 10 U.S.C. § 1034. 440 U.S. 957, 100 S.Ct. 259, 62 L.Ed.2d 178 (1979).5 II 8 In Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540, decided today, we concluded that "Congress enacted § 1034 to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels." Id., at 359, 100 S.Ct., at 602. Nothing in the legislative history suggests that Congress intended to authorize the unrestricted circulation of petitions within a military base. Indeed, both Congress and this Court have determined that "the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale." Id., at 360, 100 S.Ct., at 602. Thus, in construing statutes that affect such matters, we must not limit a commander's authority more than the legislative purpose requires. Permitting an individual member of the Armed Services to submit a petition directly to any Member of Congress serves the purpose of § 1034 without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. In Glines, therefore, we held that § 1034 does not invalidate regulations requiring members of the Armed Forces to secure command approval before circulating petitions within a military base. 9 Since the Court of Appeals reached a contrary conclusion in this case, its judgment is 10 Reversed. 11 Mr. Justice MARSHALL took no part in the consideration or decision of this case. 12 Mr. Justice STEWART, and Mr. Justice STEVENS dissent. For the reasons stated in their dissenting opinions in Brown v. Glines, 444 U.S. 348, 374 and 378, 100 S.Ct. 594, 603 and 605, 62 L.Ed.2d 540, they would affirm the judgment of the Court of Appeals in this case. 1 The class consists of "all members of the Marine Corps stationed at, assigned to, or on duty at the Marine Corps Air Station at Iwakuni, Japan." 413 F.Supp. 863, 864-865 (1976). The respondents also sought a judgment expunging Falatine's arrest record, invalidating Huff's conviction, and restoring to Huff all benefits denied as the result of his conviction. Id., at 865. Those claims, however, are no longer part of the case. See infra, at 456, and n. 4. 2 Fleet Marine Force Pacific Order 5370.3, ¶ 3(b) (1974). The full subparagraph reads: "No Fleet Marine Force, Pacific or Marine Corps Bases, Pacific, personnel will originate, sign, distribute, or promulgate petitions, publications, including pamphlets, newspapers, magazines, handbills, flyers, or other printed or written material, on board any ship, craft, aircraft, or in any vehicle of the Department of the Navy, on any military installation on duty or in uniform, or anywhere within a foreign country irrespective of uniform or duty status, unless prior command approval is obtained." The other three regulations, although different in geographic scope, use substantially identical language. See Pacific Fleet Instruction 5440.3C, § 2604.2(2) (1974); First Marine Aircraft Wing Order 5370.1B, ¶ 5(a)(2) (1974); Iwakuni Marine Corps Air Station Order 5370.3A, ¶ 5(a)(2) (1973). Each regulation directs a commander to "control or prohibit" the circulation of written materials, that, in his judgment, would: "(1) Materially interfere with the safety, operation, command, or control of his unit or the assigned duties of particular members of the command; or, "(2) Present a clear danger to the loyalty, discipline, morale, or safety to [sic] personnel of his command; or, "(3) Involve distribution of material or the rendering of advice or counsel that causes, attempts to cause, or advocates, insubordination, disloyalty, mutiny, refusal of duty, solicits desertion, discloses classified information, or contains obscene or pornographic matter; or, "(4) Involve the planning or perpetration of an unlawful act or acts." Fleet Marine Force Pacific Order 5370.3, ¶ 4(a) (1974). See Pacific Fleet Instruction 5440.3C, § 2604.2(4) (1973); First Marine Aircraft Wing Order 5370.1B, ¶ 6(c) (1974); Iwakuni Marine Corps Air Station Order 5370.3A, ¶ 5(c) (1973). The respondents' complaint did not challenge these standards, App. 5-7, and the Court of Appeals did not review them, 188 U.S.App.D.C. 26, 32-33, 575 F.2d 907, 913-914 (1978). Thus, the only issue before us is the validity of the prior approval requirement. 3 Article XVI of the Status of Forces Agreement between the United States and Japan specifically proscribes political activity by American servicemen within the host country. [1960] 11 U.S.T. 1664, T.I.A.S. No. 4510. 4 The respondents had sought expungement of Falatine's arrest record, invalidation of Huff's conviction for petitioning outside the base without permission, and restoration of all benefits denied to Huff as the result of his conviction. Since the District Court found the regulations valid as applied to petitioning outside the base, the court denied these claims for relief. 413 F.Supp., at 870. 5 At oral argument, the respondents also contended that regulations requiring members of the Armed Forces to secure command approval before circulating petitions within a military base violate the First Amendment. Tr. of Oral Arg. 30. Our decision today in Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540, sustains the facial validity of this type of regulation and, therefore, disposes of respondents' First Amendment contention. We have had no occasion, either in Glines or in this case, to consider a claim that regulations were misapplied in a particular instance. See 444 U.S., at 357, n. 15, 100 S.Ct., at 601, n. 15; supra, at 456. We have noted, however, that regulations in each Armed Service were promulgated under a Department of Defense directive that "advises commanders to preserve servicemen's 'right of expression . . . to the maximum extent possible, consistent with good order and discipline and the national security.' " Brown v. Glines, 444 U.S., at 355, 100 S.Ct., at 600. A member of the service who thinks that his commander has misapplied the regulations can seek remedies within the service. See, e. g., Uniform Code of Military Justice, Art. 138, 10 U.S.C. § 938. Furthermore, the federal courts are open to assure that, in applying the regulations, commanders do not abuse the discretion necessarily vested in them.

23

444 U.S. 348 100 S.Ct. 594 62 L.Ed.2d 540 Harold R. BROWN, Secretary of Defense, et al., Petitioners,v.Albert Edward GLINES. No. 78-1006. Argued Nov. 6, 1979. Decided Jan. 21, 1980. Syllabus Air Force regulations require members of that service to obtain approval from their commanders before circulating petitions on Air Force bases. Respondent Air Force Reserve officer was removed from active duty for distributing on an Air Force base petitions to Members of Congress and the Secretary of Defense, which complained about Air Force grooming standards, without having obtained approval of the base commander as required by the regulations. Respondent then brought suit in District Court challenging the validity of the regulations. That court granted summary judgment for respondent, declaring the regulations facially invalid, and the Court of Appeals affirmed. Held: The regulations are not invalid on their face. Pp. 353-361. (a) Such regulations do not violate the First Amendment. Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505. They protect a substantial Government interest unrelated to the suppression of free expression—the interest in maintaining the respect for duty and discipline so vital to military effectiveness and restrict speech no more than is reasonably necessary to protect such interest. Since a military commander is charged with maintaining morale, discipline, and readiness, he must have authority over the distribution of materials that could affect adversely these essential attributes of an effective military force. Pp. 353-358. (b) Nor do the regulations violate 10 U.S.C. § 1034, which proscribes unwarranted restrictions on a serviceman's right to communicate with a Member of Congress. As § 1034's legislative history makes clear, Congress enacted the statute to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels, and not to protect the circulation of collective petitions within a military base. Permitting an individual serviceman to submit a petition directly to any Member of Congress serves § 1034's legislative purpose without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. Pp. 358-361. 586 F.2d 675, reversed. Kent L. Jones, for petitioners, pro hac vice, by special leave of Court. David M. Cobin, for respondent. Mr. Justice POWELL delivered the opinion of the Court. 1 This case involves challenges to United States Air Force regulations that require members of the service to obtain approval from their commanders before circulating petitions on Air Force bases. The first question is whether the regulations violate the First Amendment. The second question is whether prohibiting the unauthorized circulation of petitions to Members of Congress violates 10 U.S.C. § 1034, which proscribes unwarranted restrictions on a serviceman's right to communicate with a Member of Congress. 2 * The Air Force regulations recognize that Air Force personnel have the right to petition Members of Congress and other public officials. Air Force Reg. 30-1(9) (1971). The regulations, however, prohibit "any person within an Air Force facility" and "any [Air Force] member . . . in uniform or . . . in a foreign country" from soliciting signatures on a petition without first obtaining authorization from the appropriate commander. Ibid.1 They also provide that "[n]o member of the Air Force will distribute or post any printed or written material . . . within any Air Force installation without permission of the commander. . . ." Air Force Reg. 35-15(3)(a)(1) (1970). The commander can deny permission only if he determines that distribution of the material would result in "a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission. . . ." Id., 35-15(3)(a)(2).2 3 Albert Glines was a captain in the Air Force Reserves. While on active duty at the Travis Air Force Base in California, he drafted petitions to several Members of Congress and to the Secretary of Defense complaining about the Air Force's grooming standards.3 Aware that he needed command approval in order to solicit signatures within a base, Glines at first circulated the petitions outside his base. During a routine training flight through the Anderson Air Force Base in Guam, however, Glines gave the petitions to an Air Force sergeant without seeking approval from the base commander. The sergeant gathered eight signatures before military authorities halted the unauthorized distribution. Glines' commander promptly removed him from active duty, determined that he had failed to meet the professional standards expected of an officer, and reassigned him to the standby reserves. Glines then brought suit in the United States District Court for the Northern District of California claiming that the Air Force regulations requiring prior approval for the circulation of petitions violated the First Amendment and 10 U.S.C. § 1034.4 The court granted Glines' motion for summary judgment and declared the regulations facially invalid. Glines v. Wade, 401 F.Supp. 127 (1975).5 4 The Court of Appeals for the Ninth Circuit affirmed the finding of facial invalidity. Glines v. Wade, 586 F.2d 675 (1978).6 Following its decision in an earlier case involving collective petitions to Members of Congress, the court first determined that the regulations violated 10 U.S.C. § 1034.7 The statute prohibits any person from restricting a serviceman's communication with Congress "unless the communication is unlawful or violates a regulation necessary to the security of the United States." The Air Force regulations against unauthorized petitioning on any base did not satisfy the statutory standard, the court concluded, because the Government had not shown that such restraints on servicemen in Guam were necessary to the national security. 586 F.2d, at 679. Since § 1034 did not cover Glines' petition to the Secretary of Defense, the court next considered whether the regulations violated the First Amendment. The court acknowledged that requirements of military discipline could justify otherwise impermissible restrictions on speech. It held, however, that the Air Force regulations are unconstitutionally overbroad because they might allow commanders to suppress "virtually all controversial written material." 586 F.2d, at 681. Such restrictions, the court concluded, "exceed anything essential to the government's interests." Ibid. We granted certiorari, 440 U.S. 957, 99 S.Ct. 1496, 59 L.Ed.2d 769 (1979), and we now reverse. II 5 In Greer v. Spock, 424 U.S. 828, 840, 96 S.Ct. 1211, 1218, 47 L.Ed.2d 505 (1976), Mr. Justice STEWART wrote for the Court that "nothing in the Constitution . . . disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command." In that case, civilians who wished to distribute political literature on a military base challenged an Army regulation substantially identical to the Air Force regulations now at issue. See id., at 831, and n. 2, 96 S.Ct., at 1214, and n. 2. The civilians claimed that the Army regulation was an unconstitutional prior restraint on speech, invalid on its face. We disagreed. We recognized that a base commander may prevent the circulation of material that he determines to be a clear threat to the readiness of his troops. See id., at 837-839, 96 S.Ct., at 1217-1218. We therefore sustained the Army regulation. Id., at 840,8 96 S.Ct., at 1218. For the same reasons, we now uphold the Air Force regulations.9 6 These regulations, like the Army regulation in Spock, protect a substantial Government interest unrelated to the suppression of free expression. See Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). The military is, "by necessity, a specialized society separate from civilian society." Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974). Military personnel must be ready to perform their duty whenever the occasion arises. Ibid. To ensure that they always are capable of performing their mission promptly and reliably, the military services "must insist upon a respect for duty and a discipline without counterpart in civilian life." Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975); see Department of Air Force v. Rose, 425 U.S. 352, 367-368, 96 S.Ct. 1592, 1602, 48 L.Ed.2d 11 (1976). 7 " 'Speech that is protected in the civil population may . . . undermine the effectiveness of response to command.' " Parker v. Levy, supra, 417 U.S., at 759, 94 S.Ct., at 2563, quoting United States v. Priest, 21 U.S.C.M.A. 564, 570, 45 C.M.R. 338, 344 (1972). Thus, while members of the military services are entitled to the protections of the First Amendment, "the different character of the military community and of the military mission requires a different application of those protections." Parker v. Levy, 417 U.S., at 758, 94 S.Ct., at 2563. The rights of military men must yield somewhat " 'to meet certain overriding demands of discipline and duty . . . .' " Id., at 744, 94 S.Ct., at 2556, quoting Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953) (plurality opinion).10 Speech likely to interfere with these vital prerequisites for military effectiveness therefore can be excluded from a military base. Spock, 424 U.S., at 840, 96 S.Ct., at 1218; id., at 841, 96 S.Ct., at 1219 (BURGER, C. J., concurring); id., at 848, 96 S.Ct., at 1222 (POWELL, J., concurring). 8 Like the Army regulation that we upheld in Spock, the Air Force regulations restrict speech no more than is reasonably necessary to protect the substantial governmental interest. See Procunier v. Martinez, supra. Both the Army and the Air Force regulations implement the policy set forth in Department of Defense (DOD) Directive 1325.6 (1969).11 That directive advises commanders to preserve servicemen's "right of expression . . . to the maximum extent possible, consistent with good order and discipline and the national security." Id., ¶ II. Thus, the regulations in both services prevent commanders from interfering with the circulation of any materials other than those posing a clear danger to military loyalty, discipline, or morale. Air Force Reg. 35-15(3)(a)(2) (1970); Army Reg. 210-10, ¶ 5-5(c) (1970); see DOD Dir. 1325.6, ¶ III(A)(1) (1969). Indeed, the Air Force regulations specifically prevent commanders from halting the distribution of materials that merely criticize the Government or its policies. Air Force Reg. 35-15(3)(a)(4) (1970); see DOD Dir. 1325.6, ¶ III(A)(3) (1969). Under the regulations, Air Force commanders have no authority whatever to prohibit the distribution of magazines and newspapers through regular outlets such as the post exchange newsstands. Air Force Reg. 35-15(3)(a)(1) (1970); see DOD Dir. 1325.6, ¶ III(A)(1) (1969).12 Nor may they interfere with the "[d]istribution of publications and other materials through the United States mail. . . ." Air Force Reg. 35-15(3)(a)(1) (1970). The Air Force regulations also require any commander who prevents the circulation of materials within his base to notify his superiors of that decision. Air Force Reg. 35-15(3)(a)(2) (1970); see Army Reg. 210-10, ¶ 5-5(d) (1970). Spock held that such limited restrictions on speech within a military base do not violate the First Amendment. 424 U.S., at 840, 96 S.Ct., at 1218; id., at 848, 96 S.Ct., at 1222 (POWELL, J., concurring). 9 Spock also established that a regulation requiring members of the military services to secure command approval before circulating written materials within a military base is not invalid on its face. Id., at 840,13 96 S.Ct., at 1218. Without the opportunity to review materials before they are dispersed throughout his base, a military commander could not avert possible disruptions among his troops. Since a commander is charged with maintaining morale, discipline, and readiness, he must have authority over the distribution of materials that could affect adversely these essential attributes of an effective military force.14 "[T]he accuracy and effect of a superior's command depends critically upon the specific and customary reliability of [his] subordinates, just as the instinctive obedience of subordinates depends upon the unquestioned specific and customary reliability of the superior." Department of Air Force v. Rose, 425 U.S., at 368, 96 S.Ct., at 1602. Because the right to command and the duty to obey ordinarily must go unquestioned, this Court long ago recognized that the military must possess substantial discretion over its internal discipline. See, e. g., Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953); In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890). In Spock, we found no facial constitutional infirmity in regulations that allow a commander to determine before distribution whether particular materials pose a clear danger to the good order of his troops.15 The Air Force regulations at issue here are identical in purpose and effect to the regulation that we upheld in Spock. We therefore conclude that they do not violate the First Amendment. III 10 The only novel question in this case is whether 10 U.S.C. § 1034 bars military regulations that require prior command approval for the circulation within a military base of petitions to Members of Congress. The statute says that "[n]o person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States." (Emphasis added.) Glines contends that this law protects the circulation of his collective petitions as well as the forwarding of individual communications. We find his contention unpersuasive. 11 Section 1034 was introduced as a floor amendment to the Universal Military Training and Service Act of 1951 in response to a specific and limited problem. While Congress was debating the Act, Congressman Byrnes of Wisconsin learned that a young constituent seeking a hardship discharge from the Navy "had been told by his commanding officer . . . that a direct communication with his Congressman was prohibited and [that] it would make him subject to court-martial." 97 Cong.Rec. 3776 (1951). When the Congressman made inquiry about the regulations imposing this restriction, the Secretary of the Navy informed him that they required "any letter from a member of the naval service . . . to a Congressman which affects the Naval Establishment . . . [to] be sent through official channels." Ibid.16 The Congressman then proposed an amendment to the pending military legislation that would outlaw this requirement. 12 Congressman Byrnes' purpose was "to permit any man who is inducted to sit down and take a pencil and paper and write to his Congressman or Senator." Ibid.17 The entire legislative history of the measure focuses on providing an avenue for the communication of individual grievances. The Chairman of the Armed Services Committee succinctly summarized the legislative understanding. The amendment, he said, was intended "to let every man in the armed services have the privilege of writing his Congressman or Senator on any subject if it does not violate the law or if it does not deal with some secret matter." Id., at 3877. It therefore is clear that Congress enacted § 1034 to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels.18 13 Both Congress and this Court have found that the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale. See, e. g., Middendorf v. Henry, 425 U.S. 25, 37-40, 43, 96 S.Ct. 1281, 1288-1290, 1291, 47 L.Ed.2d 556 (1976); id., at 49-51, 96 S.Ct., at 1294-1295 (POWELL, J., concurring); Parker v. Levy, 417 U.S., at 756, 94 S.Ct., at 2561; Orloff v. Willoughby, 345 U.S., at 93-94, 73 S.Ct., at 539-540.19 In construing a statute that touches on such matters, therefore, courts must be careful not to "circumscribe the authority of military commanders to an extent never intended by Congress." Huff v. Secretary of Navy, 188 U.S.App.D.C. 26, 35, 575 F.2d 907, 916 (1978) (TAMM, J., concurring in part and dissenting in part), rev'd, 444 U.S. 453, 100 S.Ct. 606, 62 L.Ed.2d 607. Permitting an individual member of the Armed Services to submit a petition directly to any Member of Congress serves the legislative purpose of § 1034 without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. The unrestricted circulation of collective petitions could imperil discipline. We find no legislative purpose that requires the military to assume this risk and no indication that Congress contemplated such a result.20 We therefore decide that § 1034 does not protect the circulation of collective petitions within a military base. IV 14 We conclude that neither the First Amendment nor 10 U.S.C. § 1034 prevents the Air Force from requiring members of the service to secure approval from the base commander before distributing petitions within a military base. We therefore hold that the regulations at issue in this case are not invalid on their face. Accordingly, the judgment of the Court of Appeals is 15 Reversed. 16 Mr. Justice MARSHALL took no part in the consideration or decision of this case. 17 Mr. Justice BRENNAN, dissenting. 18 I join my Brother STEWART's dissent on statutory grounds in Nos. 78-599, 444 U.S. 453, 100 S.Ct. 606, 62 L.Ed.2d 607 and 78-1006, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540. Since that opinion does not command a Court, it is appropriate to express my view on the constitutional questions presented. I believe that the military regulations at issue are prohibited by the First Amendment; accordingly, I would hold them to be unconstitutional, and affirm the judgments of the two Courts of Appeals. 19 Two sets of military regulations are challenged. Respondents in Huff (No. 78-599, 444 U.S. 453, 100 S.Ct. 606, 62 L.Ed.2d 607) attack Navy and Marine Corps regulations that require prior approval by commanding officers before the origination, distribution, or circulation of petitions or other written material on ships, aircraft, military installations, and "anywhere within a foreign country." Fleet Marine Force Pacific Order 5370.3 (1974). Respondent in Glines (No. 78-1006, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540) challenges parallel Air Force regulations that require command approval before the distribution or posting of nonofficial printed material and for the circulation of petitions for signature.1 Air Force Regs. 30-1(9) (1971) and 35-15(3)(a) (1970). Both the Navy and Marine Corps and the Air Force regulations authorize withholding of approval if the commander determines that distribution would pose a "clear danger" to loyalty, discipline, or morale of servicemen or if the distribution would "[m]aterially interfere" with military duties.2 The Air Force regulations explicitly declare, however, that "[d]istribution or posting may not be prohibited solely on the ground that the material is critical of Government policies or officials." Air Force Reg. 35-15(3)(a)(4). (Emphasis added.)3 20 * Respondents contend that the regulations impermissibly interfere with First Amendment rights to communicate and petition. That contention finds solid support in First Amendment doctrine as explicated in a variety of settings by decisions of this Court. These regulations plainly establish an essentially discretionary regime of censorship that arbitrarily deprives respondents of precious communicative rights. 21 The circulation of petitions is indisputably protected First Amendment activity. Petitioning involves a bundle of related First Amendment rights: the right to express ideas, see, e. g., Street v. New York, 394 U.S. 576, 593, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572 (1969); Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943), the right to be exposed to ideas expressed by others, see, e. g., Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); id., at 308, 85 S.Ct., at 1497 (BRENNAN, J., concurring); Martin v. City of Struthers, supra, 319 U.S., at 143, 63 S.Ct., at 863, the right to communicate with government, see, e. g., Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963); cf. Hague v. CIO, 307 U.S. 496, 513, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939) (Roberts, J.), and the right to associate with others in the expression of opinion, see, e. g., Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976); Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972); NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958).4 The petition is especially suited for the exercise of all of these rights: It serves as a vehicle of communication; as a classic means of individual affiliation with ideas or opinions; and as a peaceful yet effective method of amplifying the views of the individual signers. Indeed, the petition is a traditionally favored method of political expression and participation. See, e. g., United States v. Cruikshank, 92 U.S. 542, 552-553, 23 L.Ed. 588 (1876); 2 J. Story, Commentaries on the Constitution of the United States 619-620 (Cooley ed., 1873); cf. White v. Nicholls, 3 How. 266, 289, 11 L.Ed. 591 (1845). Thus, petitioning of officials has been expressly held to be a right secured by the First Amendment.5 Bridges v. California, 314 U.S. 252, 277, 62 S.Ct. 190, 201, 86 L.Ed. 192 (1941). 22 This First Amendment shield for petitioning is impermissibly breached in at least three ways by the regulations before us. 23 First. By mandating that proposed petitions be subjected to command approval, the regulations impose a prior restraint.6 See Greer v. Spock, 424 U.S. 828, 865, 96 S.Ct. 1211, 1230, 47 L.Ed.2d 505 (1976) (BRENNAN, J., dissenting); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-553, 95 S.Ct. 1239, 1243, 43 L.Ed.2d 448 (1975); Times Film Corp. v. Chicago, 365 U.S. 43, 45-46, 81 S.Ct. 391, 392-393, 5 L.Ed.2d 403 (1961). Although the First Amendment bar against prior restraints is not absolute, Nebraska Press Assn. v. Stuart, 427 U.S. 539, 590, 96 S.Ct. 2791, 2817, 49 L.Ed.2d 683 (1976) (BRENNAN, J., concurring in judgment), the Court has repeatedly emphasized that the prior censorship of expression can be justified only by the most compelling governmental interests, see, e. g., Nebraska Press Assn. v. Stuart, supra, at 558-559, 96 S.Ct. at 2802; New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (per curiam opinion); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 715-716, 51 S.Ct. 625, 630-631, 75 L.Ed. 1357 (1931). Thus far, only the interest in averting a virtually certain prospect of imminent, severe injury to the Nation in time of war has been generally considered a sufficiently weighty ground for prior restraint of constitutionally protected speech.7 See, e. g., New York Times, 403 U.S., at 726 -727, 91 S.Ct., at 2147-2148 (BRENNAN, J., concurring); id., at 730, 91 S.Ct., at 2149 (STEWART, J., concurring). The instant regulations, however, explicitly require commanding officers to suppress petitioning for reasons far less urgent than imminent, serious, peril to the United States or its citizens. The maintenance of military discipline, morale, and efficiency are undeniably important, but they are not always, and in every situation, to be regarded as more compelling than a host of other governmental interests which we have found insufficient to warrant censorship. See, e. g., New York Times Co. v. United States, supra; Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); see also Buckley v. Valeo, supra. Moreover, terms as amorphous as "discipline" and "morale" invite latitudinous interpretation that intolerably disadvantages the exercise of First Amendment rights. See Procunier v. Martinez, 416 U.S. 396, 415-416, 94 S.Ct. 1800, 1812, 40 L.Ed.2d 224 (1974). As these very cases illustrate, the perceived threat to discipline and morale will often correlate with the commanding officer's personal or political biases.8 See infra, at 615-616. 24 Second. The command-approval procedure implementing these regulations is seriously flawed. Time and again, the Court has underscored the principle that restraints upon communication must be hedged about by procedures that guarantee against infringement of protected expression and that eliminate the play of discretion that epitomizes arbitrary censorship. See, e. g., Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S., at 558-562, 95 S.Ct., at 1246-1248; Blount v. Rizzi, 400 U.S. 410, 416-417, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971); Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, supra, 372 U.S., at 70-71, 83 S.Ct., at 639; cf. Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). We have identified specific safeguards that are indispensable if a system of prior approval is to avoid First Amendment pitfalls. These include (1) the requirement that the burden of justifying censorship fall upon the censor, see New York Times Co. v. United States, supra, 403 U.S., at 714, 91 S.Ct., at 2141; Freedman v. Maryland, supra, 380 U.S., at 58, 85 S.Ct., at 738, (2) the condition that administrative suppression must be subject to speedy judicial review, see Blount v. Rizzi, supra, 400 U.S., at 417, 91 S.Ct., at 428, and (3) the rule that those whose First Amendment interests are at stake be given notice and an opportunity to be heard during suppression proceedings, see Carroll v. President & Comm'rs of Princess Anne, supra, 393 U.S., at 181-183, 89 S.Ct., at 351-352; cf. Procunier v. Martinez, supra, 416 U.S., at 417-419, 94 S.Ct., at 1814. 25 None of these safeguards is present under the prior command-approval scheme. There is no indication that the burden of justifying censorship rests upon the authorities. Not only does the commanding officer make his own determination to suppress, but also no provision is made for prompt judicial judicial review.9 And we search the regulations in vain for any provision affording the right to appear before the censoring officer to argue for approval. Thus, the regulations utterly fail to meet even the minimum procedural dictates of the First Amendment; rather, as designed, they countenance the arbitrary and nonneutral suppression of communication by petition.10 26 Third. The regulations demonstrably do not serve the military interests offered as their compelling justification, and for that reason alone violate the First Amendment. If regulation of communicative rights is to be justified by a compelling governmental interest, the regulation must precisely further that interest; where constitutional rights are at stake, important ends do not sustain mismatched means. See Nebraska Press Assn. v. Stuart, 427 U.S., at 563-567, 569, 96 S.Ct., at 2804-2806, 2807; Procunier v. Martinez, supra, 416 U.S., at 413, 94 S.Ct., at 1811. In this respect, the regulations here plainly founder. The most important purpose that can be posited for them is prevention of incitement to military disorder. But if the danger of incitement necessitates prior clearance of servicemen's messages, it would be logical for the military to mandate preclearance of all messages, whether circulated by petition or disseminated orally. Since oral discussion is not subjected to preliminary censorship, doubt must be raised as to the urgency and the efficacy of such censorship when communication is by petition. In other words, inasmuch as the content of an oral communication may be identical to the content of a petition, there is no reason to single out petitions for a content-preclearance requirement. 27 The only rational basis for disparate treatment of petitioning and oral communication would be the presence of some danger peculiar to the process of petitioning. But petitioning differs from simple oral expression only in that it involves an element of physical conduct. Insofar as that physical element of the petitioning process poses a greater threat of disruption than does simple verbal expression, recourse to content-neutral regulation of the time, place, and manner of circulation is surely an appropriate and sufficient alternative to suppression. By ordering prior official review of the content of petitions, these regulations are an excessive response to any distinctive problems of petitioning. Even the most important governmental purpose cannot justify a regulation that unduly burdens First Amendment liberties. See Shelton v. Tucker, 364 U.S. 479, 488-490, 81 S.Ct. 247, 252-253, 5 L.Ed.2d 231 (1960). II 28 All that the Court offers to palliate these fatal constitutional infirmities is a series of platitudes about the special nature and overwhelming importance of military necessity.11 444 U.S., at 353-354, 100 S.Ct., at 598-599. 29 Military (or national) security is a weighty interest, not least of all because national survival is an indispensable condition of national liberties. See United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 423, 19 L.Ed.2d 508 (1967). But the concept of military necessity is seductively broad, and has a dangerous plasticity. Because they invariably have the visage of overriding importance, there is always a temptation to invoke security "necessities" to justify an encroachment upon civil liberties. For that reason, the military-security argument must be approached with a healthy skepticism: its very gravity counsels that courts be cautious when military necessity is invoked by the Government to justify a trespass on First Amendment rights. 30 Such skepticism lay at the heart of our decision in New York Times Co. v. United States. There, the Government urged that publication of the so-called Pentagon Papers would damage the Nation's security during a period of armed conflict. We rejected that assertion. 403 U.S., at 714, 91 S.Ct., at 2141. Separate opinions scrutinized the security argument, and declined to rely merely upon the Government's characterization of the interest at stake. Id., at 719-720, 91 S.Ct., at 2144. (BLACK, J.); id., at 722-724, 91 S.Ct., at 2145-2146 (DOUGLAS, J.); id., at 726-727, 91 S.Ct., at 2147-2148 (BRENNAN, J.); id., at 730, 91 S.Ct. at 2149 (STEWART, J.); id., at 731, 733, 91 S.Ct., at 2150-2151 (WHITE, J.). Similarly, United States v. Robel, supra, 389 U.S. at 263-264, 88 S.Ct., at 423, spurned simple deference to "talismanic incantation[s]" of " 'war power.' " Analogously, we have stringently viewed the national-security argument when it has been proffered to support domestic warrantless surveillance. United States v. United States District Court, 407 U.S. 297, 320, 92 S.Ct. 2125, 2138, 32 L.Ed.2d 752 (1972). 31 To be sure, generals and admirals, not federal judges, are expert about military needs. But it is equally true that judges, not military officers, possess the competence and authority to interpret and apply the First Amendment. Moreover, in the context of this case, the expertise of military officials is, to a great degree, tainted by the natural self-interest that inevitably influences their exercise of the power to control expression. Partiality must be expected when government authorities censor the views of subordinates, especially if those views are critical of the censors. Larger, but vaguely defined, interests in discipline or military efficiency may all too easily become identified with officials' personal or bureaucratic preferences. This Court abdicates its responsibility to safeguard free expression when it reflexively bows before the shibboleth of military necessity. Cf. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842-845, 98 S.Ct. 1535, 1543-1544, 56 L.Ed.2d 1 (1978). 32 A properly detached—rather than unduly acquiescent—approach to the military-necessity argument here would doubtless have led the Court to a different result. The military's omission to regulate the content of oral communication suggests the pointlessness of controlling the identical message when embodied in a petition. It is further troubling that these regulations apply to all military bases, not merely to those that operate under combat or near-combat conditions. The "front line" and the rear echelon may be difficult to identify in the conditions of modern warfare, but there is a difference between an encampment that faces imminent conflict and a military installation that provides staging, support, or training services. It is simply impossible to credit the contention that national security is significantly promoted by the control of petitioning throughout all installations. 33 Finally, and fundamentally, the Court has been deluded into unquestioning acceptance of the very flawed assumption that discipline and morale are enhanced by restricting peaceful communication of various viewpoints. Properly regulated as to time, place, and manner, petitioning provides a useful outlet for airing complaints and opinions that are held as strongly by citizens in uniform as by the rest of society. The forced absence of peaceful expression only creates the illusion of good order; underlying dissension remains to flow into the more dangerous channels of incitement and disobedience. In that sense, military efficiency is only disserved when First Amendment rights are devalued. III 34 The Court egregiously errs in holding that Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), compels the validation of these regulations. I dissented in Greer, and continue to disagree with the decision in that case. But, in any event, Greer is not dispositive here; indeed, if it governs at all in these cases, Greer is authority that the regulations are constitutionally indefensible. 35 Greer arose because of the rejection by military authorities of Dr. Benjamin Spock's request to hold a Presidential campaign meeting and distribute campaign literature at Fort Dix. Although the case involved a number of Army regulations restricting various expressive activities—including regulations parallel to those before us now—the actual issue in Greer was the exclusion of a politically partisan campaign effort. And there were three critical elements in Greer that prompted the Court to sustain that exclusion: 36 First, the Court relied upon the proposition that civilians lack expressive rights on military reservations from which they can be excluded. Significantly, the previous decision in Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972) (per curiam ), was distinguished on the ground that leafletting in Flower had taken place on a portion of Fort Sam Houston that had been effectively dedicated to public use. 37 Second, the Court noted that servicemen stationed at Fort Dix had easy access to off-base public fora where they could be exposed to communications by Dr. Spock and others. By the same token, although not discussed in Greer, these off-base fora provided Dr. Spock with ample opportunity for expressive activity. Thus, from the standpoint of speaker and listeners, the Fort Dix regulations only effected a partial cutoff of communicative rights because other equivalent avenues of interchange remained open. 38 Finally, Greer repeatedly emphasized the lack of any claim that the Fort Dix regulations had been applied in biased fashion. It explicitly noted the complete absence of any question of "irrationa[l], invidiou[s], or arbitrar[y]" application of the Army regulations. 424 U.S., at 840, 96 S.Ct., at 1218. Accordingly, the Court did not confront the problem of official discrimination among political viewpoints. Indeed, Greer placed weight upon a perceived "American constitutional tradition" that the military be institutionally free of political entanglement, and that it avoid "the appearance of acting as a handmaiden for partisan political causes or candidates." Id., at 839, 96 S.Ct., at 1218. 39 These three predicates to Greer are wholly absent in the setting in which we review the regulations before us. On their face, and as applied in these cases, the regulations restrict the expressive activities of individuals who are mandatorily, not permissively, present on military reservations. For soldiers and sailors, as opposed to civilians, military installations must be the place for "free . . . communication of thoughts," Greer v. Spock, supra, at 838, 96 S.Ct., at 1217. Further, when service personnel are stationed abroad or at sea, the base or warship is very likely the only place for free communication of thoughts.12 Thus, in contrast to Greer, the regulations here permit complete foreclosure of a distinctive mode of expression by servicemen, who lack the civilian's option to depart the sphere of military authority. 40 These cases also differ from Greer because they exemplify pervasive official partiality in the regulation of messages.13 The orders refusing command approval for respondents' petitioning or leafletting flowed from the obviously biased official judgment that the content was "erroneous and misleading commentary," App. in No. 78-599, p. 34, or that it "impugn[ed] by innuendo the motives and conduct" of the President, id., at 46. Far from being evenhanded regulation, this sort of command judgment is quintessentially political; in suppressing communication that "impugns" Presidential conduct "by innuendo," military authorities entangle themselves in national politics. Since these cases involve discriminatory regulation of communication, Greer's assumption of military neutrality—and, consequently, Greer's result—cannot govern here. Actually, the "tradition of a politically neutral military," Greer, supra, at 839, 96 S.Ct., at 1218, strongly counsels invalidation of these regulations, which demonstrably encourage commanding officers to exercise personal political judgment in deciding whether to permit petitioning.14 41 Today's decisions, then, clash, rather than comport, with the underlying premises of Greer v. Spock. The Court unnecessarily trammels important First Amendment rights by uncritically accepting the dubious proposition that military security requires or is furthered by—the discretionary suppression of a classic form of peaceful group expression. Service men and women deserve better than this. I respectfully dissent. 42 Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, dissenting. 43 The Department of the Navy used to have a regulation mandating that every communication to a Member of Congress from anybody in the Navy had to be forwarded through official channels, if the communication "affect[ed] the Naval Establishment." See 97 Cong.Rec. 3776 (1951). Congress was informed about this regulation in 1951, and its reaction was to enact a statute that currently reads: 44 "No person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States." 10 U.S.C. § 1034. 45 Today, the Court holds that this statute does not in any way protect the circulation by servicemen on United States military bases of petitions addressed to Members of Congress. Specifically, the Court holds that the statute does not apply to a military regulation requiring that the content of petitions addressed to Members of Congress be precleared,1 even when the petitioning activity occurs on a base located in a noncombat area in time of peace. To reach this result, the Court necessarily concludes either that petitions are not "communication[s]" within the meaning of § 1034 or that the compelled prescreening of petitions is not a "restrict[ion]" within the meaning of that statute. Since, in my view, each of these conclusions is at odds with the express language of the statute and with its legislative history, I respectfully dissent. 46 Section 1034 protects those servicemen who "communicat[e]" with Members of Congress. As the Court necessarily acknowledges, a letter bearing one signature is a "communication" protected by § 1034. Nothing in logic would suggest that such a letter forfeits the statute's protection simply by acquiring additional signatures. Accordingly, reason would indicate that petitions are a form of "communication" protected under § 1034: they are no more than letters bearing many signatures. Moreover, it seems clear that a serviceman "communicates" with his Congressman just as much when he signs a letter drafted by a third person as when he writes and signs that letter himself. 47 Yet the Court's opinion appears to conclude that petitions are not "communications" within the meaning of § 1034. To reach this conclusion, the Court relies on the statute's legislative history. As the Court points out, the specific situation brought to the attention of Congress in 1951 was that of a serviceman who had been threatened with court-martial proceedings if he sent a letter to his Congressman without prior command approval. By enacting the predecessor of § 1034, Congress made clear that it wanted to prohibit this kind of restraint. But the legislative history cited by the Court shows that the purpose of the law was considerably broader than simply "to permit any man who is inducted to sit down and take a pencil and paper and write to his Congressman or Senator." 97 Cong.Rec. 3776 (1951). 48 The historic matrix of the law contains no suggestion that Congress intended § 1034 to cover no more than a letter written and signed by one individual person.2 If anything is to be drawn from § 1034's history, it is that Congress intended to protect more than such single-signature letters. A precise and particularized problem was brought to the attention of Congress in 1951, one that could easily have been remedied by a similarly circumscribed solution. Congress chose instead to write broadly so as to accord protection to all "communications" sent by military personnel to Members of Congress. Clearly, the legislative purpose was to cover the myriad of ways in which a citizen may communicate with his Congressman. By limiting the scope of § 1034 to the particular case brought to the attention of Congress in 1951, the Court, I think, reads the legislative history as mistakenly as it reads the language of the statute itself.3 49 The Court's opinion can be interpreted alternatively to hold that the regulations at issue do not constitute a "restrict[ion]" within the meaning of § 1034. That position also gives the statute an unjustifiably narrow scope. An absolute ban of petitions or petitioning activity on military bases would obviously constitute a "restrict[ion]."4 The regulations before us amount to such a ban, but with one difference. They permit a limited exception for petitions whose content has been precleared by command authority. This kind of exception, however, is precisely the type of "restrict[ion]" on the free flow of communication between servicemen and Congress that the law prohibits. As stated by the law's sponsor, a requirement that a serviceman send his communications through channels "is a restriction in and of itself." 97 Cong.Rec. 3776 (1951). 50 That the preclearance regulations at issue here restrict the free flow of communication between servicemen and Members of Congress could not be more clearly demonstrated than by the facts presented in Secretary of Navy v. Huff, 444 U.S. 453, 100 S.Ct. 606, 62 L.Ed.2d 607. There, servicemen invoked the preclearance procedures contained in similar regulations, but were denied permission to collect signatures on several petitions addressed to Members of Congress, which denials the Government now concedes were improper.5 Not only did the prescreening procedure unjustifiably prevent the circulation of those particular petitions; it also necessarily discouraged further collective and individual attempts by those servicemen to communicate with Congress. 51 It seems clear to me that the application of the challenged regulations in this case violated the provisions of § 1034. Under that statute only those rules that prohibit "unlawful" communications or that are "necessary to the security of the United States" may be enforced. No claim is made here that the communicative content of any of the respondent's petitions was in any way "unlawful." Moreover, no contention is made that the respondent disclosed anything secret or confidential in the proposed petitions to the Members of Congress.6 And surely it could not conceivably be argued that, as a general proposition, a regulation requiring the preclearance of the content of all petitions to be circulated by servicemen in time of peace is "necessary to the security of the United States." 52 For these reasons, I believe that the judgment of the Court of Appeals should be affirmed.7 Accordingly, I respectfully dissent from the opinion and judgment of the Court. 53 Mr. Justice STEVENS, dissenting. 54 The question whether 10 U.S.C. § 1034 includes a right to circulate petitions is not an easy one for me. I must confess that I think the plain language of the statute and its sparse legislative history slightly favor the Court's reading that it does not. Nevertheless, I agree with Mr. Justice STEWART'S construction of the statute for two reasons. First, in a doubtful case I believe a statute enacted to remove impediments to the flow of information to Congress should be liberally construed. Second, the potentially far-reaching consequences of deciding the constitutional issue1 counsel avoidance of that issue if the "case can be fairly decided on a statutory ground."2 Mr. Justice STEWART has surely demonstrated that the test is met here. I therefore respectfully dissent. 1 Air Force Reg. 30-1(9) (1971) provides: "Right of Petition. Members of the Air Force, their dependents and civilian employees have the right, in common with all other citizens, to petition the President, the Congress or other public officials. However, the public solicitation or collection of signatures on a petition by any person within an Air Force facility or by a member when in uniform or when in a foreign country is prohibited unless first authorized by the commander." This regulation has been superseded by Air Force Reg. 30-1(19)(b) (1977), which contains substantially the same provisions. 2 Air Force Reg. 35-15(3)(a) (1970) provides: "(1) No member of the Air Force will distribute or post any printed or written material other than publications of an official governmental agency or base regulated activity within any Air Force installation without permission of the commander or his designee. A copy of the material with a proposed plan or method of distribution or posting will be submitted when permission is requested. Distribution of publications and other materials through the United States mail or through official outlets, such as military libraries and exchanges, may not be prohibited under this regulation. "(2) When prior approval for distribution or posting is required, the commander will determine if a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission, would result. If such a determination is made, distribution or posting will be prohibited and HQ USAF (SAFOI) will be notified of the circumstances. "(3) Mere possession of materials unauthorized for distribution or posting may not be prohibited unless otherwise unlawful. However, such material may be impounded if a member of the Armed Forces distributes or posts or attempts to distribute or post such material within the installation. Impounded materials will be returned to the owner when departing the installation unless determined to be evidence of a crime. "(4) Distribution or posting may not be prohibited solely on the ground that the material is critical of Government policies or officials. "(5) In general, installation commanders should encourage and promote the availability to service personnel of books, periodicals, and other media which present a wide range of viewpoints on public issues." 3 The petition to the Secretary of Defense, for example, read: "Dear Secretary of Defense: "We, the undersigned, all American citizens serving in the Armed Services of our nation, request your assistance in changing the grooming standards of the United States Air Force. "We feel that the present regulations on grooming have caused more racial tension, decrease in morale and retention, and loss of respect for authorities than any other official Air Force policy. "We are similarly petitioning Senator Cranston, Senator Tunney, Senator Jackson, and Congressman Moss in the hope that one of our elected or appointed officials will help correct this problem." Glines v. Wade, 586 F.2d 675, 677, n. 1 (CA9 1978). 4 Glines named as defendants three of his superior officers, the Secretary of the Air Force, and the Secretary of Defense. 5 The District Court also awarded Glines backpay and ordered him restored to active service. 401 F.Supp., at 132. The Court of Appeals affirmed the reinstatement order, but it vacated the backpay award on the ground that all monetary claims against the United States for more than $10,000 are within the exclusive jurisdiction of the Court of Claims. 586 F.2d, at 681-682. Neither issue is before this Court. 6 The Court of Appeals held that Glines was not required to exhaust his administrative remedies by seeking relief from the Air Force Board for the Correction of Military Records. The court found that Glines' claim involved statutory and constitutional matters over which the Board had no jurisdiction. Id., at 678. Since the petitioners expressly declined to raise the exhaustion issue in this Court, Pet. for Cert. 6, n. 2, error in the Court of Appeals' resolution of the issue would not affect our jurisdiction. Cf. Mathews v. Eldridge, 424 U.S. 319, 330, 96 S.Ct. 893, 900, 47 L.Ed.2d 18 (1976). 7 The Court of Appeals' decision and the discussion of this issue appear in its opinion in Allen v. Monger, 583 F.2d 438, 440-442 (1978), cert. pending sub nom. Brown v. Allen, No. 78-1005. 8 We specifically emphasized that the Army regulation at issue in Greer v. Spock did "not authorize the [base] authorities to prohibit the distribution of conventional political campaign literature." 424 U.S., at 831, n. 2, 96 S.Ct., at 1214, n. 2, 1218. Thus, our decision to sustain that regulation was distinct from our concomitant decision to uphold another regulation that prevented civilians from using a military base as a forum for the expression of political views, id., at 838-839, 96 S.Ct., at 1217-1218. See id., at 841, 96 S.Ct., at 1219 (BURGER, C. J., concurring); id., at 848-849, 86 S.Ct., at 122 (POWELL, J., concurring). 9 Mr. Justice STEVENS' dissenting opinion seems to suggest that we should avoid the constitutional issue in this case by applying 10 U.S.C. § 1034 to petitioning activity that the statute otherwise would not protect. Post, at 378. Since Glines' petition to the Secretary of Defense was not covered by the statute, however, we agree with the Court of Appeals that "[t]his petition requires us to decide whether the First Amendment also protects Glines' activities." 586 F.2d, at 679. As the Court of Appeals understood, Glines' petition to the Secretary was itself a sufficient reason for his reassignment to the standby reserves. 10 See Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 935-936 (1936); Terrell, Petitioning Activities on Military Bases: The FIrst Amendment Battle Rages Again, 28 Emory L.J. 3, 5-14 (1979). 11 The Navy regulations adopted pursuant to DOD Dir. 1325.6 are at issue in Secretary of Navy v. Huff, 444 U.S. 453, 100 S.Ct. 606, 62 L.Ed.2d 607, which we also decide today. 12 The Army regulations allowed a commander to delay, and the Department of the Army to prevent, the distribution within a military base of particular issues of a commercial publication. Army Reg. 210-10, &Par; 5-5(c), (d) (1970). That part of the Army regulations was not at issue in Greer v. Spock. See 424 U.S., at 832, n. 2, 96 S.Ct., at 1214, n. 2. The Air Force regulations contain no such provision. 13 Glines would distinguish Spock on the ground that the plaintiffs in that case were civilians who had no specific right to enter a military base. The distinction is unpersuasive. Our decision in Spock rejected a facial challenge to a regulation that required "any person," civilian or military, to obtain prior permission for the distribution of literature within a base. Id., at 831, 96 S.Ct., at 1214. Unauthorized distributions of literature by military personnel are just as likely to undermine discipline and morale as similar distributions by civilians. Furthermore, the military has greater authority over a serviceman than over a civilian. See Parker v. Levy, 417 U.S. 733, 749-751, 94 S.Ct. 2547, 2558-2559, 41 L.Ed.2d 439 (1974). Even when not confronted with the special requirements of the military, we have held that a governmental employer may subject its employees to such special restrictions on free expression as are reasonably necessary to promote effective government. See CSC v. Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 2890, 37 L.Ed.2d 796 (1973); Cole v. Richardson, 405 U.S. 676, 684, 92 S.Ct. 1332, 1337, 31 L.Ed.2d 593 (1972); cf. Kelley v. Johnson, 425 U.S. 238, 245-248, 96 S.Ct. 1440, 1444-1446, 47 L.Ed.2d 708 (1976). 14 The special dangers present in certain military situations may warrant different restrictions on the rights of servicemen. But those restrictions necessary for the inculcation and maintenance of basic discipline and preparedness are as justified on a regular base in the United States, Schneider v. Laird, 453 F.2d 345 (CA10) (per curiam ), cert. denied, 407 U.S. 914, 92 S.Ct. 2436, 32 L.Ed.2d 690 (1972); Dash v. Commanding General, 307 F.Supp. 849 (SC 1969), aff'd, 429 F.2d 427 (CA4 1970) (per curiam ), cert. denied, 401 U.S. 981, 91 S.Ct. 1192, 28 L.Ed.2d 333 (1971), as on a training base, Greer v. Spock, supra, or a combat-ready installation in the Pacific, Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 511 F.2d 1327 (1975). Loyalty, morale, and discipline are essential attributes of all military service. Combat service obviously requires them. And members of the Armed Services, wherever they are assigned, may be transferred to combat duty or called to deal with civil disorder or natural disaster. Since the prior approval requirement supports commanders' authority to maintain basic discipline required at nearly every military installation, it does not offend the First Amendment. "This Court has . . . repeatedly expressed its reluctance to strike down a statute on its face where there [are] a substantial number of situations to which it might be validly applied." Parker v. Levy, supra, 417 U.S., at 760, 94 S.Ct., at 2563. 15 Commanders sometimes may apply these regulations "irrationally, invidiously, or arbitrarily," thus giving rise to legitimate claims under the First Amendment. Greer v. Spock, supra, 424 U.S., at 840, 96 S.Ct., at 1218, see Secretary of Navy v. Huff, 444 U.S., at 457-458, n. 5, 100 S.Ct., at 608, n. 5. But Glines, who—like the civilians in Spock —never requested permission to circulate his materials, has not and cannot raise such a claim. Greer v. Spock, 424 U.S., at 840, 96 S.Ct., at 1218; id., at 849, 96 S.Ct., at 1222 (POWELL, J., concurring). 16 The relevant Navy regulation actually imposed restrictions on "[a]ll petitions, remonstrances, memorials and communications of any person or persons in the naval service. . . ." Navy Regs., art. 1248 (1948). Glines argues that Congress intended to remove all restrictions imposed by the regulation, including those on collective as well as individual petitioning. But the plain language of § 1034 reflects no such intention. Indeed, nothing in the legislative history suggests that Congress even was aware of the full scope of the Navy regulation. 17 The original proposal protected any person from induction into a branch of the Armed Forces that restricted the "rights of its members to communicate directly with Members of Congress. . . ." 97 Cong.Rec. 3776 (1951). After the Chairman of the Armed Services Committee pointed out that the Navy did not induct its members, ibid., the proposal was amended to substantially its present form, id., at 3877, 3883. Universal Military Training and Service Act of 1951, § 1(d), 65 Stat. 78. The statute underwent minor revisions when codified in 1956. Act of Aug. 10, 1956, 70A Stat. 80. No change in substance was intended. See S.Rep.No.2484, 84th Cong., 2d Sess., 19-21, 95-96 (1956); H.R.Rep.No.970, 84th Cong., 1st Sess., 8-10, 85 (1955). 18 Section 1034 stands in marked contrast to an analogous statute enacted about 40 years earlier in order to guarantee federal civil servants the right to petition Congress. That statute provides: "The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied." 5 U.S.C. § 7211 (1976 ed., Supp. II). (Emphasis added.) 19 See also Curry v. Secretary of Army, 194 U.S.App.D.C. 66, 595 F.2d 873 (1979). 20 Glines says DOD Dir. 1325.6, ¶ III(G) (1969), shows that the Department of Defense itself construes the statute more broadly. The directive, however, adds nothing to the statutory language or the legislative history. It simply says that the Uniform Code of Military Justice, Art. 138, 10 U.S.C. § 938, protects the "right of members [of the Armed Forces] to complain and request redress of grievances against actions of their commander." It then cites 10 U.S.C. § 1034 for the statement that "a member may petition or present any grievance to any member of Congress. . . ." In Huff v. Secretary of the Navy, 188 U.S.App.D.C. 26, 32, 575 F.2d 907, 913 (1978), rev'd, 444 U.S. 453, 100 S.Ct. 606, 62 L.Ed.2d 607, the court concluded that this reference to § 1034 implied approval of group petitioning. But the regulations enforced in the Air Force and the other services demonstrate that the Department of Defense has construed its own directive otherwise. See supra, at 355-356, and n. 11. 1 The Air Force regulations exempt from prior command approval the distribution of published material "through the United States mail or through official outlets, such as military libraries and exchanges. . . . " Air Force Reg. 35-15(3)(a)(1) (1970). Department of Defense guidelines are to the same effect. DOD Directive 1325.6 (1969). 2 In addition, the Navy and Marine Corps regulations bar circulation of material that advocates insubordination, disloyalty, mutiny, or desertion, that discloses classified information, that contains obscene matter, or that involves the planning of unlawful acts. 3 A counterpart to this declaration is the statement in DOD Directive 1325.6, ¶ (A)(3) (1969), that "[t]he fact that a publication is critical of Government policies or officials is not, in itself, a ground upon which distribution may be prohibited." 4 It may be that the Petition Clause, in some contexts, enhances the protections of the Speech Clause. There is no need, however, to explore the distinctive attributes of the Petition Clause in these cases, for conventional First Amendment analysis amply suffices to dispose of the constitutional issues presented here. 5 Because the petition so effectively promotes a number of First Amendment interests—especially those that are associational in nature—petitioning is not merely fungible with other expressive activities. 6 The command-approval requirement is not simply a "time, place, and manner" regulation valid under the First Amendment. See Police Department of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212 (1972). The constitutional touchstone of permissible time, place, and manner regulation is that it focus upon the circumstances—not the content of expression. Id., at 99, 92 S.Ct., at 2292. The military regulations in these cases—facially and as applied—look to the content of petitions, as well as to the manner in which they are circulated. 7 To be sure, we have upheld restraints directed against obscenity, Times Film Corp. v. Chicago, 365 U.S. 43, 47-48, 81 S.Ct. 391, 393-394, 5 L.Ed.2d 403 (1961), or against so-called "fighting words," Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Such restraints have been permitted on the theory that the censored expression does not enjoy First Amendment protection. We have always been careful to insist, however, that restrictions aimed at unprotected speech be carefully crafted and applied to avoid trenching upon communication that comes within the ambit of the First Amendment. See, e. g., Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). It has also been speculated that the direct, immediate threat of interference with the trial process might warrant a restraint upon constitutionally protected expression. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 569-570, 96 S.Ct. 2791, 2806-2808, 49 L.Ed.2d 683 (1976) (dictum). But see id., at 588, 594-595, 96 S.Ct., at 2816, 2819-2820 (BRENNAN, J., concurring in judgment). Significantly, however, this Court has repeatedly rejected efforts to wield the judicial contempt power against expression that assertedly jeopardized the administration of justice. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 844-845, 98 S.Ct. 1535, 1544, 56 L.Ed.2d 1 (1978); Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). 8 Among the suppressed communications were a petition to a Congressman supporting amnesty for Vietnam War resisters and a leaflet outlining certain respondents' views about the constitutional rights of servicemen. Both were censored, the former because it "contain[ed] gross misstatements and implications of law and fact [and] impugn[ed] by innuendo the motives and conduct of the Commander-in-Chief of the Armed Forces" ; the latter because it was "by transparent implication, disrespectful and contemptuous of all of your superiors. . . . " App. in No. 78-599, pp. 46-47, 50. The petitioners conceded below that suppression of the leaflet was improper under military regulations. Brief for Petitioners in No. 78-599, p. 8, n. 3. 9 It is unnecessary to consider whether servicemen might challenge censorship decisions by bringing suits against their commanding officers. See Huff, 444 U.S., at 458-459, n. 5, 100 S.Ct., at 608, n. 5. The lack of provision for immediate judicial review is not cured by the possibility that an individual might assume the burden of commencing a collateral action. Cf. Blount v. Rizzi, 400 U.S. 410, 418, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971). Moreover, it is unlikely as a practical matter that persons serving at sea or on foreign soil will have ready access to domestic federal courts. 10 Again, the factual background of these cases is instructive. Two respondents individually submitted a single leaflet for approval. The commanding general denied one respondent permission to distribute the leaflet on base, because of its disrespectful and "contemptuous" tone. The same officer permitted the other respondent to circulate the identical leaflet outside the main gate. App. in No. 78-599, pp. 36, 50. Since the on-post/off-post distinction had not been considered dispositive with respect to other requests, see id., at 44, 46-47, it is difficult to identify the principle underlying the differing decisions about the leaflet. 11 The Court, 444 U.S., at 356, n. 13, 100 S.Ct., at 600, n. 13, also suggests that curtailment of First Amendment freedoms might be warranted inasmuch as service personnel are Government employees, citing CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). That doctrine is inapposite. The predicate for upholding liberty restrictions as a condition of public employment must, at least in part, be the voluntariness of the decision to accept Government employment. At various times, however, this country has inducted citizens into military service as a matter of compulsion. Moreover, unlike other employees, servicemen may not freely resign their posts should they decide to unburden themselves of restraints upon their freedom of expression. It is also noteworthy that the statutory scheme considered in Letter Carriers permitted employees to "[s]ign a political petition as an individual," 413 U.S., at 577, n. 21, 93 S.Ct., at 2896, and evidently further allowed the full panoply of petitioning rights with respect to petitions addressed to the Federal Government, id., at 572-574, 587-588, 93 S.Ct., at 2893-2895, 2901 (appendix). 12 The regulations permit commanding officers to restrain petitioning activities off-base in foreign countries. 13 While the respondents in these cases mount a facial challenge to the military regulations, an appreciation of the theoretical dangers posed by the regulations is best gained by considering their operation in practice. 14 Indeed, inasmuch as the regulations state that distribution or posting of petitions or other writings "may not be prohibited solely on the ground that the material is critical of Government policies or officials," Air Force Reg. 35-15(3)(a)(4) (1970) (emphasis added), the implication is that prohibition may be partly based upon the fact that the material in question challenges Government policy or officials. Further, at least one command response to a petitioning request indicates that the officer in charge considered his censoring function to include the duty to "afford proper guidance to the men under my command," App. in No. 78-599, pp. 46-47. 1 On their face, the regulations at issue strongly suggest that the content of prospective petitions may be considered by the commanding officer in determining whether or not to grant servicemen permission to circulate the documents. Air Force Reg. 35-15(3)(a) (1970) requires that, in order to obtain permission to circulate any petition, a serviceman must submit to his commander "[a] copy of the material with a proposed plan or method of distribution or posting. . . ." The regulation further provides that permission to distribute will be denied where the commander determines that "a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission, would result." Finally, the regulation admonishes the commander that "[d]istribution or posting may not be prohibited solely on the ground that the material is critical of Government policies or officials." (Emphasis added.) Any doubt that the regulations involved here permit the appropriate commanding officer to review the contents of prospective petitions is dispelled by what occurred in Secretary of Navy v. Huff, 444 U.S. 453, 100 S.Ct. 606, 62 L.Ed.2d 607. There, a commanding officer, acting under the authority of similar regulations, prohibited the circulation of petitions because they contained "gross misstatements and implications of law and fact as well as impugning by innuendo the motives and conduct of the Commander-in-Chief of the Armed Forces. . . ." 2 It is worth noting that nothing in § 1034's legislative history indicates that when Congress drafted that provision it had in mind the slightly different wording of 5 U.S.C. § 7211 (1976 ed., Supp. II), which explicitly protects the petitioning rights of federal civil servants. 3 In support of its conclusion, the Court states: "The unrestricted circulation of collective petitions could imperil discipline. We find no legislative purpose that requires the military to assume this risk and no indication that Congress contemplated such a result." Ante, at 360. Contrary to the Court's implication, a reading of § 1034 to include petitions within that statute's ambit would not leave the military without the ability to protect its vital interests. The statute expressly permits the promulgation of rules regulating communicative conduct if "necessary to the security of the United States." 4 Without some activity aimed at the acquisition of signatures, no petition could ever be created. 5 Permission was denied to circulate a petition to Senator Cranston opposing the use of military personnel in labor disputes and a petition to Representative Dellums requesting amnesty for Vietnam war resisters, even though the requesters had stated that they would circulate the petitions out of uniform, during their off-duty hours, and away from the work areas of the base. 6 Congress included the "necessary to the security" exception in § 1034 so that the Government could prohibit servicemen from imparting "secret matter" in their communications with Congress. 97 Cong.Rec. 3877 (1951). 7 The respondent was demoted to the standby reserves because he had failed to submit for preclearance a petition addressed to the Secretary of Defense as well as petitions separately addressed to various Members of Congress. While the latter petitions were protected by 10 U.S.C. § 1034, the former was not. I would nonetheless affirm the judgment of the Court of Appeals. There is no reason to believe that the respondent suffered the demotion only for his circulation of the petition addressed to the Secretary of Defense. 1 For the reasons stated by Mr. Justice BRENNAN, I do not consider the constitutional question foreclosed by the Court's decision in Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505. Nor do I view it as so easy as to justify the novel practice of deciding the constitutional question before addressing the statutory issue. Ante, at 349. 2 "Our settled practice . . . is to avoid the decision of a constitutional issue if a case can be fairly decided on a statutory ground. 'If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.' Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. The more important the issue, the more force there is to this doctrine." University of California Regents v. Bakke, 438 U.S. 265, 411-412, 98 S.Ct. 2733, 2810, 57 L.Ed.2d 750 (opinion of STEVENS, J.) (footnote omitted).

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444 U.S. 469 100 S.Ct. 652 62 L.Ed.2d 622 Charles TAGUEv.State of LOUISIANA. No. 79-5386. Jan. 21, 1980. PER CURIAM. 1 Petitioner was charged with armed robbery in violation of La.Rev.Stat.Ann. § 14:64 (West 1974). He was convicted by a jury and sentenced to 65 years at hard labor without benefit of parole. His conviction was affirmed by the Supreme Court of Louisiana in a brief per curiam opinion. 372 So.2d 555, 556 (1979). On rehearing, a divided court reaffirmed petitioner's conviction. Ibid. It rejected his contention that an inculpatory statement made to the arresting officer and introduced at trial had been obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 2 At the suppression hearing in the trial court, the arresting officer testified that he read petitioner his Miranda rights from a card, that he could not presently remember what those rights were, that he could not recall whether he asked petitioner whether he understood the rights as read to him, and that he "couldn't say yes or no" whether he rendered any tests to determine whether petitioner was literate or otherwise capable of understanding his rights. 372 So.2d at 557. 3 A majority of the Supreme Court of Louisiana held that an arresting officer is not 4 "compelled to give an intelligence test to a person who has been advised of his rights to determine if he understands them . . . . 5 "Absent a clear and readily apparent lack thereof, it can be presumed that a person has capacity to understand, and the burden is on the one claiming a lack of capacity to show that lack. LSA-C.C. arts. 25 and 1782 . . . ." Id., at 557-558. Justice Dennis in dissent wrote that 6 "[c]ontrary to the explicit requirements of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, . . . the majority today creates a presumption that the defendant understood his constitutional rights and places the burden of proof upon the defendant, instead of the state, to demonstrate whether the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id., at 558. 7 We agree. The majority's error is readily apparent. Miranda v. Arizona clearly stated the principles that govern once the required warnings have been given. 8 "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders." 384 U.S., at 475, 86 S.Ct., at 1628. 9 Just last Term, in holding that a waiver of Miranda rights need not be explicit but may be inferred from the actions and words of a person interrogated, we firmly reiterated that 10 "[t]he courts must presume that a defendant did not waive his rights; the prosecution's burden is great . . . ." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). 11 In this case no evidence at all was introduced to prove that petitioner knowingly and intelligently waived his rights before making the inculpatory statement. The statement was therefore inadmissible. 12 Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted, the judgment is reversed, and the case is remanded to the Supreme Court of Louisiana for further proceedings not inconsistent with this opinion. 13 So ordered. 14 The CHIEF JUSTICE would set the case for oral argument. 15 Mr. Justice REHNQUIST dissents. He thinks that, under the circumstances described in the opinion of the Supreme Court of Louisiana, the judgment of that court was fully consistent with North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), and not inconsistent with any other decision of this Court.

01

444 U.S. 460 100 S.Ct. 647 62 L.Ed.2d 614 HATZLACHH SUPPLY CO., INC., Petitioner,v.UNITED STATES. No. 78-1175. Jan. 21, 1980. Nathan Lewin, Washington, D. C., for petitioner. Kent L. Jones, Washington, D. C., for respondent, pro hac vice, by special leave of Court. PER CURIAM. 1 We granted certiorari in this case to consider whether the United States may be held liable for breach of an implied contract of bailment when goods are lost while held by the United States Customs Service (USCS) following their seizure for customs violations. 441 U.S. 942, 99 S.Ct. 2158, 60 L.Ed.2d 1043 (1979). The Court of Claims granted the Government's motion for summary judgment, finding that petitioner had failed to state a claim upon which the court could grant relief. 579 F.2d 617, 217 Ct.Cl. 423 (1978). We vacate the Court of Claims' judgment and remand the case for further proceedings. 2 Petitioner imported camera supplies and other items which USCS seized upon their arrival in port and declared forfeited for customs violations. On petitioner's appropriate procedure for relief, USCS agreed to return the forfeited materials upon petitioner's payment of a $40,000 penalty. When the shipment was returned to petitioner, however, merchandise valued in excess of $165,000 was missing. Petitioner brought suit under the Tucker Act, 28 U.S.C. § 1491, for the value of the missing merchandise,1 alleging breach of an implied contact of bailment.2 3 The Court of Claims initially conceded that "the statutes cited by the plaintiff, along with the action of the USCS in agreeing to return the seized goods upon payment of a $40,000 fine by Hatzlachh, could make a strong case for the existence of an implied-in-fact contract properly to preserve and redeliver all the goods to Hatzlachh." 579 F.2d, at 620, 217 Ct.Cl., at 428. The court noted, however, that 28 U.S.C. § 2680(c) excepts from the tort liability of the Government under the Federal Tort Claims Act any claim "arising in respect of . . . the detention of any goods or merchandise by any officer of customs." Because in its view this provision would bar a tort claim for the loss that occurred in this case, the court thought that it "would certainly be a trespass on congressional prerogatives for this court now to hold that, by seizing subject to forfeiture certain merchandise, the Government assented to, or agreed to be bound by, an implied-in-fact contract to return the merchandise whole." 579 F.2d, at 621, 217 Ct.Cl., at 430. The Court of Claims accordingly declined to find an implied-in-fact contract, remarking that it could not "judicially allow by the back door a claim which was, rather clearly and explicitly, legislatively barred at the front." Ibid. 4 We cannot agree with the Court of Claims that § 2680(c) is such a major obstacle to awarding judgment against the Government on an implied contract. Section 2680, which is entitled "Exceptions," declares that "[t]he provisions of this chapter . . . shall not apply to" certain kinds of claims, which are then described. Among the excepted claims are those specified in § 2680(c)—claims "arising in respect of . . . the detention of any goods or merchandise" by any customs officer. The section, although excluding certain claims from the statutory waiver of immunity from tort liability,3 does not limit or otherwise affect immunity waivers contained in other statutes such as the Tucker Act, which invests the Court of Claims with jurisdiction to render judgment "upon any claim against the United States founded . . . upon any express or implied contract with the United States." 5 Neither does its legislative history support the view that § 2680(c), first passed in 1946 as part of the Federal Tort Claims Act, was intended to declare the immunity of the United States from express or implied contracts with customs officers that would, or might, otherwise be within the jurisdiction of the Court of Claims under the Tucker Act. On the contrary, it appears that in exempting from the Tort Claims Act those claims described in § 2680(c), Congress did not further intend to disturb other existing statutory remedies. H.R.Rep.No.2245, 77th Cong., 2d Sess., 10 (1942); S.Rep.No.1196, 77th Cong., 2d Sess., 7 (1942); H.R.Rep.No.1287, 79th Cong., 1st Sess., 6 (1945); S.Rep.No.1400, 79th Cong., 2d Sess., 33 (1946); Tort Claims Against the United States: Hearings on S. 2690 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 3d Sess., 38 (1940); Tort Claims: Hearings on H.R. 5373 and H.R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., 28, 44 (1942).4 Nothing in these sources, nor anything else called to our attention, indicates that the Tort Claims Act withdrew to any extent existing remedies for the breach of express or implied contracts. Others have read the statute and its legislative history to this effect. See 2 L. Jayson, Personal Injury: Handling Federal Tort Claims § 256 (1979); Gellhorn & Schenck, Tort Actions Against the Federal Government, 47 Colum.L.Rev. 722, 729-730 (1947); Gottlieb, The Federal Tort Claims Act—A Statutory Interpretation, 35 Geo.Law J. 1, 45 (1946); Comment, The Federal Tort Claims Act, 42 Ill.L.Rev. 344, 360 (1947); Note, The Federal Tort Claims Act, 56 Yale L.J. 534, 547-548 (1947). 6 The Court of Claims relied on Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 655 (1977), where it was held that the United States is not liable under the Tort Claims Act to indemnify a third party for damages paid to a member of the Armed Forces who was injured in military training. Recognizing that the Veterans' Benefits Act provided compensation to injured servicemen, which we understood Congress intended to be the sole remedy for service-connected injuries we declined to construe the Tort Claims Act to permit third-party indemnity suits that in effect would expose the Government to greater liability than that contemplated under the statutory compensation scheme. In Stencel, Congress had provided a remedy, which we thought to be exclusive. Here, however, § 2680(c) denies a tort remedy for certain claims; and we fail to see how the Stencel holding that the existence of an exclusive statutory compensation remedy negates tort liability supports the conclusion that if the Tort Claims Act bars a tort remedy, neither is there a contractual remedy. 7 The absence of Government tort liability has not been thought to bar contractual remedies on implied-in-fact contracts, even in those cases also having elements of a tort. In Keifer & Keifer v. RFC, 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784 (1939), the Government argued that because a Government corporation could not be sued for negligence, neither could it be sued for breach of contract of bailment. The Court rejected the argument, holding that even if there was tort immunity, the waiver of immunity with respect to contract claims was not limited to "suits on contract, express or implied, not sounding in tort." See also Aleutco Corp. v. United States, 244 F.2d 674, 679 (CA3 1957); New England Helicopter Service, Inc. v. United States, 132 F.Supp. 938, 939 (RI 1955).5 8 The United States does not now defend the reasoning of the Court of Claims that § 2680(c) forecloses a remedy on an implied-in-fact contract of bailment. Tr. of Oral Arg. 37-38. It does support the judgment on a ground concededly not urged in the Court of Claims: that the contractual remedy should be rejected because individual customs officers are subject to tort liability and because 28 U.S.C. § 2006 provides that judgments against customs officers for negligent loss of goods, where seizure was made with probable cause, shall be paid by the United States. The existence of this private recourse, it is urged, counsels against recognizing a contractual remedy under the Tucker Act. We find the argument unpersuasive. There is no inconsistency between a contractual remedy against the Government and a tort remedy against customs officers. Cf. Keifer & Keifer, supra. Without more, neither the existence of a tort remedy nor the lack of one is relevant to determining whether there is an implied-in-fact contract of bailment upon which the United States is liable in the Court of Claims pursuant to its waiver of sovereign immunity contained in the Tucker Act. 9 Because the Court of Claims' judgment rested heavily on a mistaken view of the legal significance of § 2680(c) and because the Court of Claims should first address the question of an implied-in-fact contract without regard to that section, we vacate the judgment of the Court of Claims and remand the case to that court for further proceedings consistent with this opinion.6 10 So ordered. 11 Mr. Justice BLACKMUN, dissenting. 12 I do not disagree with the legal principles pronounced by the Court in its per curiam opinion to the effect that 28 U.S.C. § 2680(c) is not an obstacle to the awarding of judgment against the Government on an implied contract, ante, at 462; or that, in exempting from the Tort Claims Act those claims described in § 2680(c), Congress did not also intend to disturb other existing statutory remedies, ante, at 462; or that Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 655 (1977), does not control this case, ante, at 464-465; or that the absence of governmental tort liability does not bar contractual remedies on implied-in-fact contracts, ante, at 465; or that there is no inconsistency between a contractual remedy against the Government and a tort remedy against customs officers, ante, at 466. But I dissent from the Court's vacating the judgment of the Court of Claims and its remanding the case to that court for further proceedings. 13 I dissent because I am persuaded that an implied-in-fact contract is not to be found on the record in this case, and because I believe the remand is, or should be, a useless exercise leading to an inevitable result. 14 It is clear that jurisdiction of the Court of Claims extends to contracts implied in fact but not to those implied in law. See United States v. Minnesota Mutual Investment Co., 271 U.S. 212, 217-218, 46 S.Ct. 501, 502, 70 L.Ed. 911 (1926); Merritt v. United States, 267 U.S. 338, 341, 45 S.Ct. 278, 279, 69 L.Ed. 643 (1925). Here, the Customs Service seized the goods and declared them forfeited for customs violations. There is no question as to the legality of that seizure. See One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 234, 93 S.Ct. 489, 491, 34 L.Ed.2d 438 (1972). Indeed, petitioner has admitted that the customs declaration was improper. 579 F.2d 617, 618, 217 Ct.Cl. 423, 425 (1978); App. 11a, 18a. The Government's action, thus, was a claim of forfeiture and an assertion of ownership. There was no uninterrupted title in petitioner, recognized by the parties, as would constitute the basis of a contract implied in fact to return the goods. See Baltimore & Ohio R. Co. v. United States, 261 U.S. 592, 597, 43 S.Ct. 425, 426, 67 L.Ed. 816 (1923). If the forfeiture is not upheld, the duty to return the goods is one implied, not in fact, but in law, and is so implied from the duty imposed upon the Customs Service by statute. See 28 U.S.C. § 2465. Any recovery for failure on the part of the Service to fulfill that duty would be founded in tort, or perhaps in equity, but not in contract. 15 It therefore seems to me inevitably to follow that there is no jurisdiction over this case in the Court of Claims. See Baltimore & Ohio R. Co. v. United States, supra; Russell Corp. v. United States, 210 Ct.Cl. 596, 609, 537 F.2d 474, 482 (1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977). Any remedy for petitioner lies elsewhere. Accordingly, I would affirm the judgment of the Court of Claims, albeit on a different ground from the one advanced by that court. 1 Petitioner also sought damages, no longer in issue, for loss of "face and good will." 2 As a second cause of action, petitioner alleged a capricious and arbitrary seizure, "unreasonable detainer" of property, and "deprivation without due process." Petitioner does not challenge the dismissal of this cause of action. 3 We proceed in the text on the assumption, but without deciding, that the Court of Claims was correct in holding that the loss alleged in this case was a claim arising from the detention of goods by a customs officer and hence within the exception carved out by § 2680(c). Petitioner disputes this holding, claiming that the section is limited to wrongful detentions and does not deal with losses and that the courts are divided on the interpretation of the section. A-Mark, Inc. v. United States Secret Service, 593 F.2d 849 (CA9 1978), and Alliance Assurance Co. v. United States, 252 F.2d 529 (CA2 1958), it is said, permit recovery under the Tort Claims Act for the loss of goods detained by customs officers; whereas this case, United States v. One (1) 1972 Wood, 19 Foot Custom Boat, FL8443AY, 501 F.2d 1327 (CA5 1974), and S. Schonfeld Co. v. S. S. Akra Tenaronn, 363 F.Supp. 1220 (SC 1973), construe § 2680(c) to except such loses from the Tort Claims Act. We need not resolve the conflict. If petitioner is correct in its interpretation, § 2680(c) would itself present no barrier to either contractual or tort liability. Nor would the existence of a Tort Claims Act remedy in this case be preclusive of pre-existing contractual remedies under the Tucker Act, at least absent some reasonably clear evidence that Congress intended to foreclose contractual remedies in the circumstances obtaining here. 4 When Congress first considered the exception in 1940, Judge Alexander Holtzoff, then a Special Assistant to the Attorney General, testified before the Senate Judiciary Subcommittee considering the bill. As the then Mr. Holtzoff described the intended effect of the various exemptions, certain of them, such as the loss or miscarriage of postal matter and certain intentional torts, were included because they related to activities for which, as a policy matter, the Government should be free from tort claims. Other exemptions, such as the assessment or collection of taxes or customs duties, the detention of goods by customs officers, and admiralty or maritime torts, were included because various other laws provided the machinery for recovery on these claims and "[t]here was no purpose in interfering with that machinery." Tort Claims Against the United States: Hearings on S. 2690 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 3d Sess., 38-39 (1940). The purpose was to avoid duplication; there was no indication that existing remedies, if any, were withdrawn. 5 The Tucker Act itself is only a jurisdictional statute, of course, and does not create a substantive right to money damages. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). The enforceable claim in this case must arise from the alleged contract. Moreover, the Court of Claims' jurisdiction with respect to contracts extends only to actual contracts, either express or implied in fact; it does not reach claims on contracts implied in law. Alabama v. United States, 282 U.S. 502, 507, 51 S.Ct. 225, 226, 75 L.Ed. 492 (1931); Goodyear Tire & Rubber Co. v. United States, 276 U.S. 287, 292-293, 48 S.Ct. 306, 307, 71 L.Ed. 843 (1928); United States v. Minnesota Mutual Investment Co., 271 U.S. 212, 217, 46 S.Ct. 501, 502, 70 L.Ed. 911 (1926); Hill v. United States, 149 U.S. 593, 598, 13 S.Ct. 1011, 1013, 37 L.Ed. 862 (1893). 6 We indicate no view, one way or the other, as to whether an implied-in-fact contract could be found on the record in this case.

78

444 U.S. 380 100 S.Ct. 616 62 L.Ed.2d 564 State of IDAHO ex rel. John V. EVANS, Governor; David H. Leroy, Attorney General; Joseph C. Greenley, Director, Department of Fish and Game, Plaintiffs,v.States of OREGON AND WASHINGTON. No. 67, Orig. Argued Nov. 26, 1979. Decided Jan. 21, 1980. Syllabus Held : Failure to join the United States as a party to Idaho's action against Oregon and Washington to secure equitable apportionment of various runs of anadromous fish migrating between spawning grounds in Idaho and the Pacific Ocean, will not prevent this Court from entering an adequate judgment. Pp. 387-393. (a) None of the federal interests cited by the Special Master as rendering impossible an adequate judgment in the absence of the United States as a party—the Government's control over the ocean fishery on the runs of the fish at issue, its management of the various dams that separate the spawning grounds in Idaho from the Pacific Ocean, and its role as trustee for the various Indian tribes with treaty rights in the fish at issue—constitutes a sufficient reason for dismissing the action for the failure to join the United States as the Special Master recommends. Arizona v. California, 298 U.S. 558, 56 S.Ct. 848, 80 L.Ed. 1331, and Texas v. New Mexico, 352 U.S. 991, 77 S.Ct. 552, 1 L.Ed.2d 540, distinguished. Pp. 387-391. (b) Washington's additional argument in favor of dismissing the complaint that any allocation of nontreaty fish to Idaho would abrogate an agreement between the Indian tribes and Oregon and Washington for managing the fish originating in the Columbia River System, is without merit, since such agreement only divides the available fish between treaty and nontreaty fishermen and does not purport to allocate the nontreaty share among the various States. Pp. 391-392. (c) Washington's further assertion that for some time few if any fish have been taken from the runs at issue and that hence any further restrictions on fishing in zones open to commercial fishermen will have no appreciable effect upon the number of fish arriving in Idaho, goes to the merits of Idaho's claim and has little or nothing to do with the need to join the United States as a party. P. 392. Exceptions to Special Master's report sustained, and case remanded. 1 David H. Leroy, Atty. Gen., Boise, Idaho, for plaintiffs. 2 James A. Redden, Atty. Gen., Salem, Or., for respondent, State of oregon. 3 Slade Gorton, Atty. Gen., Olympia, Wash., for respondent, State of Washington. 4 Louis F. Claiborne, Asst. Sol. Gen., Washington, D. C., for the United States, as amicus curiae, by special leave of Court. 5 Mr. Justice REHNQUIST delivered the opinion of the Court. 6 Invoking this Court's original jurisdiction, the State of Idaho brought suit against the States of Oregon and Washington to secure equitable apportionment of various runs of anadromous fish migrating between spawning grounds in Idaho and the Pacific Ocean. We granted Idaho leave to file its complaint, but left open the questions whether that complaint stated a claim upon which relief may be granted and whether the United States was an indispensable party to the action. 429 U.S. 163, 97 S.Ct. 544, 50 L.Ed.2d 371 (1976). We later referred the action to a Special Master. 431 U.S. 952, 97 S.Ct. 2671, 53 L.Ed.2d 268 (1977). On February 2, 1979, the Special Master recommended that Idaho's action be dismissed for failure to join the United States, but that the dismissal be without prejudice to Idaho's right to refile its suit at some later date if it is wholly unable to obtain a remedy through negotiation with Oregon and Washington. Idaho has filed exceptions to that recommendation. 7 * The Snake River rises in northwest Wyoming and flows across southern Idaho, eventually turning northward and forming the boundary between Idaho and Oregon for approximately 165 miles and between Idaho and Washington for approximately 30 miles. It then turns westward and enters Washington, whence it proceeds for approximately 100 miles to its confluence with the Columbia River. The Columbia River rises in British Columbia and flows southward through eastern Washington to its confluence with the Snake River. Just below that confluence it turns westward, forming the boundary between Oregon and Washington until it empties into the Pacific Ocean 270 miles downstream. 8 Numerous species of anadromous fish spawn in the gravel bars of the Columbia/Snake River System. After remaining in their hatch area for approximately two years, these fish migrate downstream to the Pacific Ocean, where they spend anywhere from one to four years. Near the end of their life cycle the anadromous fish return to the Columbia River and migrate upstream toward the waters of their origin to spawn. At issue in the present case are three particular runs of anadromous fish: spring chinook salmon, summer chinook salmon, and steelhead trout. To a significant extent, these three runs originate in, and would return to, spawning grounds within the State of Idaho. 9 A number of manmade conditions have combined with natural obstacles to deplete seriously the number of fish that return to Idaho successfully. During both their downstream and upstream migrations, anadromous fish originating in Idaho must cross a series of eight dams built and maintained by the United States Army Corps of Engineers. The Bonneville Dam, built in 1938, lies closest to the mouth of the Columbia River. Fish crossing the Bonneville Dam on their way to Idaho also encounter the Dalles Dam, the John Day Dam, the McNary Dam, the Ice Harbor Dam, the Lower Monumental Dam, the Little Goose Dam, and, finally, the Lower Granite Dam. During their downstream migration, of course, the fish cross these dams in the reverse order. 10 At each of these dams, a portion of the water is released through turbines used to generate hydroelectric power. Water passing through these turbines is not conducive to either the "smolts" migrating downstream or the mature fish migrating upstream. Each dam is therefore equipped with a spillway, over which smolts can pass, and a "fish ladder," up which mature fish can climb. Because water sent over the spillways or fish ladders is not available to generate power, and because river conditions vary over time, the Corps of Engineers1 is often faced with a choice between generating power and facilitating migration. Even under optimal conditions, when the Corps can allocate adequate water to the spillways and the fish ladders, those mechanisms themselves will cause a significant number of mortalities among migrating fish. 11 In addition to confronting these hurdles, anadromous fish afford a catch for both sport and commercial fishermen. The Federal Government regulates the ocean fishery in a zone stretching seaward from 3 to 200 miles from the seacoast. See Fishery Conservation and Management Act of 1976, 16 U.S.C. § 1801 et seq. Within the 3-mile limit and throughout their in-river migrations, however, the anadromous fish are the subject of state regulation. 12 In 1918, with the consent of Congress, Oregon and Washington entered into the Oregon-Washington Columbia River Fish Compact, ch. 47, 40 Stat. 515. The Compact attempts to assure uniformity in the regulation of anadromous fish in the Columbia River by preventing either State from altering its fishing regulations without the consent of the other State. Pursuant to this Compact, Oregon and Washington have divided the Columbia River below the McNary Dam into six zones, with Zones 1 through 5 stretching between the Pacific Ocean and the Bonneville Dam and Zone 6 stretching between the Bonneville Dam and the McNary Dam. Idaho has attempted on a number of occasions to become a party to the Compact, but its efforts thus far have been unsuccessful. 13 In 1968, a number of Indian tribes who fished along the Columbia River brought suit against Oregon to protect fishing rights allegedly granted them under various treaties with the United States. See Sohappy v. Smith, 302 F.Supp. 899 (D.C.Or.1969). The District Court concluded that Oregon was obligated to structure its regulations so that the Indians would have "an opportunity to catch fish at their usual and accustomed places equal to that of other users to catch fish at locations preferred by them or by the state." Id., at 910. The suit remained pending in the District Court, and, in 1974, Washington moved to intervene as a defendant. Eventually, the District Court determined that the treaties in question gave the Indians a right to 50% of the fish taken from the Columbia River. The United States Court of Appeals for the Ninth Circuit affirmed this determination. See Sohappy v. Smith, 529 F.2d 570 (1976). 14 On February 25, 1977, the parties in the Sohappy litigation entered into a 5-year agreement for managing the fisheries on stocks of anadromous fish originating in the Columbia River System above the Bonneville Dam. Under the agreement, Zones 1 through 5 are open to all commercial fishermen. Zone 6, which extends from the Bonneville Dam 130 miles upstream to the McNary Dam, is restricted for use by Indians fishing pursuant to their treaty rights. A "technical advisory committee" estimates the number of fish in various runs entering the Columbia River "destined to pass [the] Bonneville Dam." An agreed-upon "escapement" for spawning is subtracted from this total in-river run size; the remaining fish in the run are then allocated between treaty and nontreaty fishermen. Thus, for spring chinook salmon, one of the runs at issue here, the plan sets an escapement goal of 120,000 fish passing into Zone 6.2 Where the run size exceeds the escapement goal by less than 30,000 fish, no nontreaty fishermen may take spring chinook salmon at any time before the fish pass into the Snake River on the other side of Zone 6. Where the run size exceeds the escapement goal by more than 30,000 fish, nontreaty fishermen may take 60% of that excess while treaty fishermen may take 40%. Other runs of fish are regulated similarly, with a predetermined escapement goal and with the remainder of the fish being divided between treaty and nontreaty fishermen.3 15 In the present suit, Idaho alleges that nontreaty fishermen in Oregon and Washington take a disproportionate share of fish destined for Idaho, thereby depleting those runs to the detriment of Idaho fishermen.4 It seeks equitable apportionment of anadromous fish destined for Idaho in the Columbia River. Significantly, Idaho does not contend that the Indians' share of anadromous fish should be reduced, but rather seeks to share in that portion of the catch now taken exclusively by nontreaty fishermen in Oregon and Washington. 16 The Special Master concluded that Idaho's complaint presents a justiciable controversy, and indicated that he found some merit in Idaho's claim that it was entitled to equitable apportionment. Nevertheless, the Special Master recommended that this suit be dismissed for failure to join the United States Government, which has invoked its sovereign immunity and has steadfastly refused to intervene as a party.5 In deciding that the United States was an indispensable party to this litigation, the Special Master looked for guidance to Rule 19(b) of the Federal Rules of Civil Procedure, which lists four factors to be considered in deciding whether a suit can proceed in the absence of an allegedly necessary party. These factors are (1) the extent to which a judgment rendered in the party's absence might be prejudicial to that party or those already parties; (2) the extent to which the court could lessen or avoid such prejudice by shaping the judgment or relief; (3) the court's ability to render an adequate judgment in the party's absence; and (4) the adequacy of remedies available to the plaintiff should the suit be dismissed. 17 The Special Master concluded that factors (1), (2), and (4) weighed in favor of allowing Idaho to prosecute this suit. Because the United States could not be bound by any judgment rendered in its absence, and because Idaho was seeking no relief against the treaty fishermen for whom the United States acts as trustee, no absent party would be prejudiced by the relief sought by Idaho. Furthermore, the Special Master felt that this suit offered Idaho its only practical avenue of relief. Oregon and Washington had consistently rebuffed Idaho's attempts to join the Columbia River Fish Compact or to otherwise negotiate some sort of accommodation. Nor did it appear that Idaho could intervene in the Sohappy litigation to assert its interest. Given the pendency of the 5-year agreement, the Sohappy court quite probably would reject Idaho's motion to intervene as untimely. Moreover, any attempt by Idaho to assert in that litigation an interest adverse to Oregon and Washington might convert that suit into a dispute among the States, a dispute over which the District Court would have no jurisdiction. 18 Although these factors weighed heavily in favor of allowing Idaho's suit to proceed, the Special Master held that federal interests were so intertwined in this suit that this Court could not possibly render an adequate judgment in the absence of the United States as a party. In particular, the Special Master cited the United States Government's control over the ocean fishery, its management of the various dams along the Columbia and Snake Rivers, and its role as trustee for the various Indian tribes with fishing rights in the anadromous fish at issue here. Balancing factor (3) of Rule 19(b) against the other three factors, the Special Master concluded that Idaho's complaint should be dismissed. At the suggestion of the United States, however, the Special Master recommended that the dismissal be without prejudice to Idaho's right to reinstitute the suit if it is wholly unable to obtain a remedy through negotiation with Oregon and Washington. In suggesting this disposition, the United States implied that it would intervene in a later action brought by Idaho should Oregon and Washington remain intractable. II 19 Idaho has filed exceptions to the Special Master's report and has asked us to reject his conclusion that the United States is a necessary party to this suit. In deciding this issue, we consider separately each of the federal interests cited by the Special Master as rendering impossible an adequate judgment without joinder of the United States Government. 20 First, the Special Master noted that the United States controls the ocean fishery on the runs of anadromous fish at issue here during that portion of their lifespan when they are outside the 3-mile limit in the Pacific Ocean. Nevertheless, we do not understand either the Special Master or the defendants to rely heavily upon this interest as evidence of the necessity for joining the United States Government as a party in this litigation. Idaho seeks apportionment of those fish entering the Columbia River destined for spawning grounds in Idaho. While regulation of the ocean fishery may have some effect upon the total number of anadromous fish returning to the Columbia River,6 it has little to do with proper allocation of the rights to take those fish once they have entered the river. 21 Second, the Special Master cited the role of the United States in operating the eight dams that separate the hatching grounds in Idaho from the Pacific Ocean. He pointed out that, at each dam, the Corps of Engineers must allocate water among the turbines, fish ladders, and spillways. Under varying river conditions, this allocation often requires a choice between the generation of power and the survival of migrating fish. The Special Master felt that, without authority to bind the United States to whatever judgment was entered in this case, he could not ensure that any additional fish allowed to pass through the first five fishing zones would ever reach the State of Idaho. 22 We do not find this consideration a persuasive reason for dismissing Idaho's suit. We can assume, as suggested by defendants, that the eight dams along the Columbia and Snake Rivers are the primary reason why more fish do not successfully migrate back to Idaho. Nevertheless, Idaho stresses that it has no quarrel with the operation of the various dams. It argues, quite persuasively we believe, that greater numbers of fish reaching each dam will, under all but the most adverse river conditions, result in greater numbers of fish crossing each dam. The mortality rate at each dam for any given set of river conditions can be, and has been, estimated and taken into account in apportionment formulas. In the case of spring chinook salmon, for example, the Sohappy agreement states that "[u]nder average river flow conditions, 120,000 fish at Bonneville Dam will generally provide 30,000 fish at Lower Granite Dam and 150,000 fish at Bonneville Dam will generally provide 37,500 fish at Lower Granite Dam." If Oregon and Washington fishermen are taking more than their fair share of Idaho-bound anadromous fish, this Court could set aside a portion of those fish for Idaho, taking into account the estimable mortality rate at each dam. 23 Third, the Special Master cited the role of the United States Government as trustee for the various Indian tribes that fish the runs at issue here. Although, as noted above, the Special Master found that a judgment rendered in this case would not adversely affect the interests of those Indians, he felt that this Court could not render a complete judgment unless it could guarantee that the Indians would not take the fish allocated to Idaho. 24 As a mathematical proposition, the relief sought by Idaho need not involve the Indians at all. Any particular run of anadromous fish entering the Columbia River destined to pass the Bonneville Dam must be allocated to one of three categories: nontreaty catch, treaty catch, and spawning escapement. Under present practices, as memorialized in the Sohappy agreement, nontreaty fishermen conduct their operations almost entirely in Zones 1 through 5. Fish allocated to Indian fisheries and to escapement are then allowed to pass the Bonneville Dam and into Zone 6. The treaty fishermen take their allocation in that zone and allow the spawning escapement to continue upriver. Idaho would have this Court order Oregon and Washington to allow a portion of the nontreaty share to pass into Zone 6 along with the treaty share and the escapement. According to the Special Master, however, without some control over treaty fishermen this Court could not guarantee that Idaho's allocation would ever get out of Zone 6. 25 We do not share the Special Master's pessimism. Under the Sohappy agreement the Indians are limited to a fixed share of the fish entering Zone 1 and destined for the waters above the Bonneville Dam. Absent evidence to the contrary, we cannot assume that the Indians would violate that agreement by taking more fish than have been allocated to them. Nor can we assume that Oregon and Washington, the other parties to the Sohappy agreement, would ignore any such violation. Because the treaty and nontreaty commercial fisheries undoubtedly compete to a certain extent, Oregon and Washington might find it in their own interests to enforce the ceiling on treaty fishing in Zone 6. Finally, should other remedies fail, Idaho might be able to intervene in the Sohappy litigation for the sole purpose of enforcing the limitations on treaty fishing. Thus, we cannot agree with the Special Master that failure to join the United States as a party to this litigation would prevent this Court from rendering an adequate judgment.7 26 This case is quite different from earlier cases where we found the United States to be an indispensable party to the prosecution of a suit within our original jurisdiction. In Arizona v. California, 298 U.S. 558, 56 S.Ct. 848, 80 L.Ed. 1331 (1936), a suit involving the division of theretofore unapportioned water in the Colorado River, we found that the Federal Government already had exercised its authority to impound that water and to control its disposition. See id., at 570, 56 S.Ct., at 854. Here, by contrast, the United States has made no attempt to control apportionment of the in-river harvest of anadromous fish, except to the extent that it has acted to protect treaty rights. In Texas v. New Mexico, 352 U.S. 991, 77 S.Ct. 552, 1 L.Ed.2d 540 (1957), another suit involving the apportionment of water flowing in an interstate river, we adopted the finding of the Special Master that the United States was indispensable in its role as trustee for various Indians. A decree in that case, however, would have "necessarily affect[ed] adversely and immediately the United States" in its fiduciary capacity. See Report of the Special Master, O. T. 1956, No. 9 Orig., p. 41. In this case, the Special Master specifically dismissed the possibility of prejudice to the United States, either in its role as trustee for the Indians or in its role as manager of the ocean fishery and the dams. Cf. United States v. Candelaria, 271 U.S. 432, 438, 443, 46 S.Ct. 561, 562, 563, 70 L.Ed. 1023 (1926). 27 Moving beyond the report of the Special Master, Washington has advanced two additional arguments in favor of dismissing Idaho's complaint. First, Washington asserted at oral argument that the Sohappy agreement was founded on the assumption that nontreaty fishermen in Washington and Oregon were entitled to take any fish not allocated either to treaty fishermen or to spawning escapement. According to Washington, any allocation of nontreaty fish to Idaho would result in abrogation of the Sohappy agreement. See Tr. of Oral Arg. 46-47. The Sohappy agreement, however, only divides the available fish between treaty and nontreaty fishermen. It does not purport to allocate the nontreaty share among the various States. Even if the agreement did guarantee Washington or Oregon fishermen any fish not allocated to treaty fishermen or to escapement, such an agreement could not and should not survive a finding by this Court that Idaho is entitled to some of those fish presently being taken by Oregon and Washington. Moreover, should Oregon or Washington seek to reopen negotiations in the Sohappy litigation, an attempt by Idaho to intervene in that litigation might meet with more success than an attempt to intervene in the face of an extant 5-year agreement. 28 Washington also argues that, at present and for the past several years, few if any fish have been taken from the runs at issue here and that further restrictions on fishing in Zones 1 through 5 will have no appreciable effect upon the number of spring chinook salmon, summer chinook salmon, and steelhead trout arriving in Idaho. This assertion, however, goes to the merits of Idaho's claim and has little or nothing to do with the need to join the United States as a party to this litigation. Idaho's narrow complaint is a two-edged sword. It has sidestepped the need to join the United States as a party by seeking only a share of the fish now being caught by nontreaty fishermen in Oregon and Washington. It now must shoulder the burden of proving that the nontreaty fisheries in those two States have adversely and unfairly affected the number of fish arriving in Idaho. A trial on the merits may well demonstrate that the target fisheries have, in fact, had no effect upon the runs of anadromous fish at issue here. Alternatively, a trial may demonstrate that natural and man-made obstacles will prevent any additional fish allowed to pass out of Zone 5 from reaching Idaho in numbers justifying additional restrictions on nontreaty fisheries in Oregon and Washington. Cf. Washington v. Oregon, 297 U.S. 517, 56 S.Ct. 540, 80 L.Ed. 837 (1936) (water not used by Oregon would sink into deep gravel in the bed of the river and never reach users in Washington). Neither of these possibilities, however, persuades us that an adequate judgment is impossible without a joinder of the United States Government. III 29 We therefore sustain Idaho's exceptions to the Special Master's report recommending that Idaho's complaint be dismissed, and remand the case to the Special Master for further proceedings not inconsistent with this opinion. 30 So ordered. 31 Mr. Justice STEWART and Mr. Justice MARSHALL dissent. Agreeing with the Special Master's report, they would overrule Idaho's exceptions thereto and would order that the complaint be dismissed. 1 To a certain extent, the United States Bureau of Reclamation and the Federal Energy Regulatory Commission also exercise some control over water releases. See Report of the Special Master 8. 2 The plan estimates that, under normal river conditions, an escapement of 120,000 spring chinook salmon above the Bonneville Dam will provide 30,000 spring chinook salmon at the Lower Granite Dam, the last dam separating the fish from Idaho's spawning grounds. 3 For summer steelhead trout, the agreement sets an escapement goal of 150,000 fish passing the Bonneville Dam or 30,000 fish at the Lower Granite Dam. If the run exceeds these goals, the excess is apportioned entirely to nontreaty fishermen. As for summer chinook salmon, the third run at issue here, the agreement states that runs of those fish "are precariously low and do not warrant any fishery at the present time. . . ." 4 According to Idaho, it has no significant commercial fishery, but only sport fisheries. 5 The United States has adopted this position despite its repeated concession that Idaho appears to be entitled to some sort of equitable relief. See Memorandum from Louis F. Claiborne to the Solicitor General, reproduced as Appendix C to Idaho's exceptions, p. C-5; Tr. of Oral Arg. 60. 6 The Sohappy agreement, however, is "based upon the premise" that the United States, through the Pacific Fishery Management Council, will regulate ocean fishing on the runs at issue here so that the ocean catches will be "essentially de minimis portions" of those runs. 7 The Special Master also implied that he felt dismissal was warranted because of the complexity of apportioning runs of anadromous fish and because this Court might have to retain continuing jurisdiction over the management of the fisheries in the Columbia and Snake Rivers. We rejected a similar argument in Nebraska v. Wyoming, 325 U.S. 589, 616, 65 S.Ct. 1332, 1350, 89 L.Ed. 1815 (1945), a case involving apportionment of water: "There is some suggestion that if we undertake an apportionment of the waters of this interstate river, we embark upon an enterprise involving administrative functions beyond our province. . . . But the efforts at settlement in this case have failed. A genuine controversy exists. . . . The difficulties of drafting and enforcing a decree are no justification for us to refuse to perform the important function entrusted to us by the Constitution."

1011

444 U.S. 286 100 S.Ct. 559 62 L.Ed.2d 490 WORLD-WIDE VOLKSWAGEN CORPORATION et al., Petitioners,v.Charles S. WOODSON, District Judge of Creek County, Oklahoma, et al. No. 78-1078. Argued Oct. 3, 1979. Decided Jan. 21, 1980. Syllabus A products-liability action was instituted in an Oklahoma state court by respondents husband and wife to recover for personal injuries sustained in Oklahoma in an accident involving an automobile that had been purchased by them in New York while they were New York residents and that was being driven through Oklahoma at the time of the accident. The defendants included the automobile retailer and its wholesaler (petitioners), New York corporations that did no business in Oklahoma. Petitioners entered special appearances, claiming that Oklahoma's exercise of jurisdiction over them would offend limitations on the State's jurisdiction imposed by the Due Process Clause of the Fourteenth Amendment. The trial court rejected petitioners' claims and they then sought, but were denied a writ of prohibition in the Oklahoma Supreme Court to restrain respondent trial judge from exercising in personam jurisdiction over them. Held: Consistently with the Due Process Clause, the Oklahoma trial court may not exercise in personam jurisdiction over petitioners. Pp. 291-209. (a) A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contacts" between the defendant and the forum State. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. The defendant's contacts with the forum State must be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice, id., at 316, 66 S.Ct., at 158, and the relationship between the defendant and the forum must be such that it is "reasonable . . . to require the corporation to defend the particular suit which is brought there," id., at 317, 66 S.Ct., at 158. The Due Process Clause "does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." Id., at 319, 66 S.Ct., at 159. Pp. 291-294. (b) Here, there is a total absence in the record of those affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction. Petitioners carry on no activity whatsoever in Oklahoma; they close no sales and perform no services there, avail themselves of none of the benefits of Oklahoma law, and solicit no business there either through salespersons or through advertising reasonably calculated to reach that State. Nor does the record show that they regularly sell cars to Oklahoma residents or that they indirectly, through others, serve or seek to serve the Oklahoma market. Although it is foreseeable that automobiles sold by petitioners would travel to Oklahoma and that the automobile here might cause injury in Oklahoma, "foreseeability" alone is not a sufficient benchmark for personal jurisdiction under the Due Process Clause. The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State, but rather is that the defendant's conduct and connection with the forum are such that he should reasonably anticipate being haled into court there. Nor can jurisdiction be supported on the theory that petitioners earn substantial revenue from goods used in Oklahoma. Pp. 295-299. Okl., 585 P.2d 351, reversed. Herbert Rubin, New York City, for petitioners. Jefferson G. Greer, Tulsa, Okl., for respondents. Mr. Justice WHITE delivered the opinion of the Court. 1 The issue before us is whether, consistently with the Due Process Clause of the Fourteenth Amendment, an Oklahoma court may exercise in personam jurisdiction over a nonresident automobile retailer and its wholesale distributor in a products-liability action, when the defendants' only connection with Oklahoma is the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma. 2 * Respondents Harry and Kay Robinson purchased a new Audi automobile from petitioner Seaway Volkswagen, Inc. (Seaway), in Massena, N. Y., in 1976. The following year the Robinson family, who resided in New York, left that State for a new home in Arizona. As they passed through the State of Oklahoma, another car struck their Audi in the rear, causing a fire which severely burned Kay Robinson and her two children.1 3 The Robinsons2 subsequently brought a products-liability action in the District Court for Creek County, Okla., claiming that their injuries resulted from defective design and placement of the Audi's gas tank and fuel system. They joined as defendants the automobile's manufacturer, Audi NSU Auto Union Aktiengesellschaft (Audi); its importer Volkswagen of America, Inc. (Volkswagen); its regional distributor, petitioner World-Wide Volkswagen Corp. (World-Wide); and its retail dealer, petitioner Seaway. Seaway and World-Wide entered special appearances,3 claiming that Oklahoma's exercise of jurisdiction over them would offend the limitations on the State's jurisdiction imposed by the Due Process Clause of the Fourteenth Amendment.4 4 The facts presented to the District Court showed that World-Wide is incorporated and has its business office in New York. It distributes vehicles, parts, and accessories, under contract with Volkswagen, to retail dealers in New York, New Jersey, and Connecticut. Seaway, one of these retail dealers, is incorporated and has its place of business in New York. Insofar as the record reveals, Seaway and World-Wide are fully independent corporations whose relations with each other and with Volkswagen and Audi are contractual only. Respondents adduced no evidence that either World-Wide or Seaway does any business in Oklahoma, ships or sells any products to or in that State, has an agent to receive process there, or purchases advertisements in any media calculated to reach Oklahoma. In fact, as respondents' counsel conceded at oral argument, Tr. of Oral Arg. 32, there was no showing that any automobile sold by World-Wide or Seaway has ever entered Oklahoma with the single exception of the vehicle involved in the present case. 5 Despite the apparent paucity of contacts between petitioners and Oklahoma, the District Court rejected their constitutional claim and reaffirmed that ruling in denying petitioners' motion for reconsideration.5 Petitioners then sought a writ of prohibition in the Supreme Court of Oklahoma to restrain the District Judge, respondent Charles S. Woodson, from exercising in personam jurisdiction over them. They renewed their contention that, because they had no "minimal contacts," App. 32, with the State of Oklahoma, the actions of the District Judge were in violation of their rights under the Due Process Clause. 6 The Supreme Court of Oklahoma denied the writ, 585 P.2d 351 (1978),6 holding that personal jurisdiction over petitioners was authorized by Oklahoma's "long-arm" statute Okla.Stat., Tit. 12, § 1701.03(a)(4) (1971).7 Although the court noted that the proper approach was to test jurisdiction against both statutory and constitutional standards, its analysis did not distinguish these questions, probably because § 1701.03(a)(4) has been interpreted as conferring jurisdiction to the limits permitted by the United States Constitution.8 The court's rationale was contained in the following paragraph, 585 P.2d, at 354: 7 "In the case before us, the product being sold and distributed by the petitioners is by its very design and purpose so mobile that petitioners can foresee its possible use in Oklahoma. This is especially true of the distributor, who has the exclusive right to distribute such automobile in New York, New Jersey and Connecticut. The evidence presented below demonstrated that goods sold and distributed by the petitioners were used in the State of Oklahoma, and under the facts we believe it reasonable to infer, given the retail value of the automobile, that the petitioners derive substantial income from automobiles which from time to time are used in the State of Oklahoma. This being the case, we hold that under the facts presented, the trial court was justified in concluding that the petitioners derive substantial revenue from goods used or consumed in this State." 8 We granted certiorari, 440 U.S. 907, 99 S.Ct. 1212, 59 L.Ed.2d 453 (1979), to consider an important constitutional question with respect to state-court jurisdiction and to resolve a conflict between the Supreme Court of Oklahoma and the highest courts of at least four other States.9 We reverse. II 9 The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978). A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U.S. 714, 732-733, 24 L.Ed. 565 (1878). Due process requires that the defendant be given adequate notice of the suit, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), and be subject to the personal jurisdiction of the court, International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In the present case, it is not contended that notice was inadequate; the only question is whether these particular petitioners were subject to the jurisdiction of the Oklahoma courts. 10 As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contacts" between the defendant and the forum State. International Shoe Co. v. Washington, supra, at 316, 66 S.Ct., at 158. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. 11 The protection against inconvenient litigation is typically described in terms of "reasonableness" or "fairness." We have said that the defendant's contacts with the forum State must be such that maintenance of the suit "does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, supra, at 316, 66 S.Ct., at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). The relationship between the defendant and the forum must be such that it is "reasonable . . . to require the corporation to defend the particular suit which is brought there." 326 U.S., at 317, 66 S.Ct., at 158. Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State's interest in adjudicating the dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957); the plaintiff's interest in obtaining convenient and effective relief, see Kulko v. California Superior Court, supra, 436 U.S., at 92, 98 S.Ct., at 1697, at least when that interest is not adequately protected by the plaintiff's power to choose the forum, cf. Shaffer v. Heitner, 433 U.S. 186, 211, n. 37, 97 S.Ct. 2569, 2583, n. 37, 53 L.Ed.2d 683 (1977); the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies, see Kulko v. California Superior Court, supra, 436 U.S., at 93, 98, 98 S.Ct., at 1697, 1700. 12 The limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, have been substantially relaxed over the years. As we noted in McGee v. International Life Ins. Co., supra, 355 U.S., at 222223, 78 S.Ct., at 201, this trend is largely attributable to a fundamental transformation in the American economy: 13 "Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." 14 The historical developments noted in McGee, of course, have only accelerated in the generation since that case was decided. 15 Nevertheless, we have never accepted the proposition that state lines are irrelevant for jurisdictional purposes, nor could we, and remain faithful to the principles of interstate federalism embodied in the Constitution. The economic interdependence of the States was foreseen and desired by the Framers. In the Commerce Clause, they provided that the Nation was to be a common market, a "free trade unit" in which the States are debarred from acting as separable economic entities. H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 538, 69 S.Ct. 657, 665, 93 L.Ed. 865 (1949). But the Framers also intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State, in turn, implied a limitation on the sovereignty of all of its sister States—a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment. 16 Hence, even while abandoning the shibboleth that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established," Pennoyer v. Neff, supra, 95 U.S., at 720, we emphasized that the reasonableness of asserting jurisdiction over the defendant must be assessed "in the context of our federal system of government," International Shoe Co. v. Washington, 326 U.S., at 317, 66 S.Ct., at 158, and stressed that the Due Process Clause ensures not only fairness, but also the "orderly administration of the laws," id., at 319, 66 S.Ct., at 159. As we noted in Hanson v. Denckla, 357 U.S. 235, 250-251, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958): 17 "As technological progress has increased the flow of commerce between the States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to the flexible standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. [Citation omitted.] Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States." 18 Thus, the Due Process Clause "does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 159. Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. Hanson v. Denckla, supra, 357 U.S., at 251, 254, 78 S.Ct., at 1238, 1240. III 19 Applying these principles to the case at hand,10 we find in the record before us a total absence of those affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction. Petitioners carry on no activity whatsoever in Oklahoma. They close no sales and perform no services there. They avail themselves of none of the privileges and benefits of Oklahoma law. They solicit no business there either through salespersons or through advertising reasonably calculated to reach the State. Nor does the record show that they regularly sell cars at wholesale or retail to Oklahoma customers or residents or that they indirectly, through others, serve or seek to serve the Oklahoma market. In short, respondents seek to base jurisdiction on one, isolated occurrence and whatever inferences can be drawn therefrom: the fortuitous circumstance that a single Audi automobile, sold in New York to New York residents, happened to suffer an accident while passing through Oklahoma. 20 It is argued, however, that because an automobile is mobile by its very design and purpose it was "foreseeable" that the Robinsons' Audi would cause injury in Oklahoma. Yet "foreseeability" alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause. In Hanson v. Denckla, supra, it was no doubt foreseeable that the settlor of a Delaware trust would subsequently move to Florida and seek to exercise a power of appointment there; yet we held that Florida courts could not constitutionally exercise jurisdiction over a Delaware trustee that had no other contacts with the forum State. In Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), it was surely "foreseeable" that a divorced wife would move to California from New York, the domicile of the marriage, and that a minor daughter would live with the mother. Yet we held that California could not exercise jurisdiction in a child-support action over the former husband who had remained in New York. 21 If foreseeability were the criterion, a local California tire retailer could be forced to defend in Pennsylvania when a blowout occurs there, see Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc., 239 F.2d 502, 507 (CA4 1956); a Wisconsin seller of a defective automobile jack could be haled before a distant court for damage caused in New Jersey, Reilly v. Phil Tolkan Pontiac, Inc., 372 F.Supp. 1205 (N.J.1974); or a Florida soft-drink concessionaire could be summoned to Alaska to account for injuries happening there, see Uppgren v. Executive Aviation Services, Inc., 304 F.Supp. 165, 170-171 (Minn.1969). Every seller of chattels would in effect appoint the chattel his agent for service of process. His amenability to suit would travel with the chattel. We recently abandoned the outworn rule of Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1905), that the interest of a creditor in a debt could be extinguished or otherwise affected by any State having transitory jurisdiction over the debtor. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Having inferred the mechanical rule that a creditor's amenability to a quasi in rem action travels with his debtor, we are unwilling to endorse an analogous principle in the present case.11 22 This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. See Kulko v. California Superior Court, supra, 436 U.S., at 97-98, 98 S.Ct., at 1699-1700; Shaffer v. Heitner, 433 U.S., at 216, 97 S.Ct., at 2586, and see id., at 217-219, 97 S.Ct., at 2586-2587 (Stevens, J., concurring in judgment). The Due Process Clause, by ensuring the "orderly administration of the laws," International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 159, gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. 23 When a corporation "purposefully avails itself of the privilege of conducting activities within the forum State," Hanson v. Denckla, 357 U.S., at 253, 78 S.Ct., at 1240, it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State. Cf. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). 24 But there is no such or similar basis for Oklahoma jurisdiction over World-Wide or Seaway in this case. Seaway's sales are made in Massena, N. Y. World-Wide's market, although substantially larger, is limited to dealers in New York, New Jersey, and Connecticut. There is no evidence of record that any automobiles distributed by World-Wide are sold to retail customers outside this tristate area. It is foreseeable that the purchasers of automobiles sold by World-Wide and Seaway may take them to Oklahoma. But the mere "unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." Hanson v. Denckla, supra, at 253, 78 S.Ct., at 1239-1240. 25 In a variant on the previous argument, it is contended that jurisdiction can be supported by the fact that petitioners earn substantial revenue from goods used in Oklahoma. The Oklahoma Supreme Court so found, 585 P.2d, at 354-355, drawing the inference that because one automobile sold by petitioners had been used in Oklahoma, others might have been used there also. While this inference seems less than compelling on the facts of the instant case, we need not question the court's factual findings in order to reject its reasoning. 26 This argument seems to make the point that the purchase of automobiles in New York, from which the petitioners earn substantial revenue, would not occur but for the fact that the automobiles are capable of use in distant States like Oklahoma. Respondents observe that the very purpose of an automobile is to travel, and that travel of automobiles sold by petitioners is facilitated by an extensive chain of Volkswagen service centers throughout the country, including some in Oklahoma.12 However, financial benefits accruing to the defendant from a collateral relation to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State. See Kulko v. California Superior Court, 436 U.S., at 94-95, 98 S.Ct., at 1698-1699. In our view, whatever marginal revenues petitioners may receive by virtue of the fact that their products are capable of use in Oklahoma is far too attenuated a contact to justify that State's exercise of in personam jurisdiction over them. 27 Because we find that petitioners have no "contacts, ties, or relations" with the State of Oklahoma, International Shoe Co. v. Washington, supra, 326 U.S., at 319, 66 S.Ct., at 159, the judgment of the Supreme Court of Oklahoma is 28 Reversed. 29 Justice BRENNAN, dissenting. 30 The Court holds that the Due Process Clause of the Fourteenth Amendment bars the States from asserting jurisdiction over the defendants in these two cases. In each case the Court so decides because it fails to find the "minimum contacts" that have been required since International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed.2d 95 (1945). Because I believe that the Court reads International Shoe and its progeny too narrowly, and because I believe that the standards enunciated by those cases may already be obsolete as constitutional boundaries, I dissent. 31 * The Court's opinions focus tightly on the existence of contacts between the forum and the defendant. In so doing, they accord too little weight to the strength of the forum State's interest in the case and fail to explore whether there would be any actual inconvenience to the defendant. The essential inquiry in locating the constitutional limits on state-court jurisdiction over absent defendants is whether the particular exercise of jurisdiction offends " 'traditional notions of fair play and substantial justice.' " International Shoe, supra, at 316, 66 S.Ct., at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). The clear focus in International Shoe was on fairness and reasonableness. Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978). The Court specifically declined to establish a mechanical test based on the quantum of contacts between a State and the defendant: 32 "Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." 326 U.S., at 319, 66 S.Ct., at 160 (emphasis added). 33 The existence of contacts, so long as there were some, was merely one way of giving content to the determination of fairness and reasonableness. 34 Surely International Shoe contemplated that the significance of the contacts necessary to support jurisdiction would diminish if some other consideration helped establish that jurisdiction would be fair and reasonable. The interests of the State and other parties in proceeding with the case in a particular forum are such considerations. McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957), for instance, accorded great importance to a State's "manifest interest in providing effective means of redress" for its citizens. See also Kulko v. California Superior Court, supra, 436 U.S., at 92, 98 S.Ct., at 1697; Shaffer v. Heitner, 433 U.S. 186, 208, 97 S.Ct. 2569, 2581, 53 L.Ed.2d 683 (1977); Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). 35 Another consideration is the actual burden a defendant must bear in defending the suit in the forum. McGee, supra. Because lesser burdens reduce the unfairness to the defendant, jurisdiction may be justified despite less significant contacts. The burden, of course, must be of constitutional dimension. Due process limits on jurisdiction do not protect a defendant from all inconvenience of travel, McGee, supra, at 224, 78 S.Ct., at 201, and it would not be sensible to make the constitutional rule turn solely on the number of miles the defendant must travel to the courtroom.1 Instead, the constitutionally significant "burden" to be analyzed relates to the mobility of the defendant's defense. For instance, if having to travel to a foreign forum would hamper the defense because witnesses or evidence or the defendant himself were immobile, or if there were a disproportionately large number of witnesses or amount of evidence that would have to be transported at the defendant's expense, or if being away from home for the duration of the trial would work some special hardship on the defendant, then the Constitution would require special consideration for the defendant's interests. 36 That considerations other than contacts between the forum and the defendant are relevant necessarily means that the Constitution does not require that trial be held in the State which has the "best contacts" with the defendant. See Shaffer v. Heitner, supra, 433 U.S., at 228, 97 S.Ct., at 2592 (BRENNAN, J., dissenting). The defendant has no constitutional entitlement to the best forum or, for that matter, to any particular forum. Under even the most restrictive view of International Shoe, several States could have jurisdiction over a particular cause of action. We need only determine whether the forum States in these cases satisfy the constitutional minimum.2 II 37 In each of these cases, I would find that the forum State has an interest in permitting the litigation to go forward, the litigation is connected to the forum, the defendant is linked to the forum, and the burden of defending is not unreasonable. Accordingly, I would hold that it is neither unfair nor unreasonable to require these defendants to defend in the forum State. A. 38 In No. 78-952, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516, a number of considerations suggest that Minnesota is an interested and convenient forum. The action was filed by a bona fide resident of the forum.3 Consequently, Minnesota's interests are similar to, even if lesser than, the interests of California in McGee, supra, "in providing a forum for its residents and in regulating the activities of insurance companies" doing business in the State.4 444 U.S., at 332, 100 S.Ct., at 579. Moreover, Minnesota has "attempted to assert [its] particularized interest in trying such cases in its courts by . . . enacting a special jurisdictional statute." Kulko, supra, 436 U.S., at 98, 98 S.Ct., at 1700; McGee, supra, 355 U.S., at 221, 224, 78 S.Ct., at 199, 201. As in McGee, a resident forced to travel to a distant State to prosecute an action against someone who has injured him could, for lack of funds, be entirely unable to bring the cause of action. The plaintiff's residence in the State makes the State one of a very few convenient fora for a personal injury case (the others usually being the defendant's home State and the State where the accident occurred).5 39 In addition, the burden on the defendant is slight. As Judge Friendly has recognized, Shaffer emphasizes the importance of identifying the real impact of the lawsuit. O'Connor v. Lee-Hy Paving Corp., 579 F.2d 194, 200 (CA2 1978) (upholding the constitutionality of jurisdiction in a very similar case under New York's law after Shaffer ). Here the real impact is on the defendant's insurer, which is concededly amenable to suit in the forum State. The defendant is carefully protected from financial liability because the action limits the prayer for damages to the insurance policy's liability limit.6 The insurer will handle the case for the defendant. The defendant is only a nominal party who need be no more active in the case than the cooperation clause of his policy requires. Because of the ease of airline transportation, he need not lose significantly more time than if the case were at home. Consequently, if the suit went forward in Minnesota, the defendant would bear almost no burden or expense beyond what he would face if the suit were in his home State. The real impact on the named defendant is the same as it is in a direct action against the insurer, which would be constitutionally permissible. Watson v. Employers Liability Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954); Minichiello v. Rosenberg, 410 F.2d 106, 109-110 (CA2 1968). The only distinction is the formal, "analytica[l] prerequisite," 444 U.S., at 331, 100 S.Ct., at 578, of making the insured a named party. Surely the mere addition of appellant's name to the complaint does not suffice to create a due process violation.7 40 Finally, even were the relevant inquiry whether there are sufficient contacts between the forum and the named defendant, I would find that such contacts exist. The insurer's presence in Minnesota is an advantage to the defendant that may well have been a consideration in his selecting the policy he did. An insurer with offices in many States makes it easier for the insured to make claims or conduct other business that may become necessary while traveling. It is simply not true that "State Farm's decision to do business in Minnesota was completely adventitious as far as Rush was concerned." 444 U.S., at 328-329, 100 S.Ct., at 577. By buying a State Farm policy, the defendant availed himself of the benefits he might derive from having an insurance agent in Minnesota who could, among other things, facilitate a suit for appellant against a Minnesota resident. It seems unreasonable to read the Constitution as permitting one to take advantage of his nationwide insurance network but not to be burdened by it. 41 In sum, I would hold that appellant is not deprived of due process by being required to submit to trial in Minnesota, first because Minnesota has a sufficient interest in and connection to this litigation and to the real and nominal defendants, and second because the burden on the nominal defendant is sufficiently slight. B 42 In No. 78-1078, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490, the interest of the forum State and its connection to the litigation is strong. The automobile accident underlying the litigation occurred in Oklahoma. The plaintiffs were hospitalized in Oklahoma when they brought suit. Essential witnesses and evidence were in Oklahoma. See Shaffer v. Heitner, 433 U.S., at 208, 97 S.Ct., at 2581. The State has a legitimate interest in enforcing its laws designed to keep its highway system safe, and the trial can proceed at least as efficiently in Oklahoma as anywhere else. 43 The petitioners are not unconnected with the forum. Although both sell automobiles within limited sales territories, each sold the automobile which in fact was driven to Oklahoma where it was involved in an accident.8 It may be true, as the Court suggests, that each sincerely intended to limit its commercial impact to the limited territory, and that each intended to accept the benefits and protection of the laws only of those States within the territory. But obviously these were unrealistic hopes that cannot be treated as an automatic constitutional shield.9 44 An automobile simply is not a stationary item or one designed to be used in one place. An automobile is intended to be moved around. Someone in the business of selling large numbers of automobiles can hardly plead ignorance of their mobility or pretend that the automobiles stay put after they are sold. It is not merely that a dealer in automobiles foresees that they will move. 444 U.S., at 295, 100 S.Ct., at 566. The dealer actually intends that the purchasers will use the automobiles to travel to distant States where the dealer does not directly "do business." The sale of an automobile does purposefully inject the vehicle into the stream of interstate commerce so that it can travel to distant States. See Kulko, 436 U.S., at 94, 98 S.Ct., at 1698; Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). 45 This case is similar to Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971). There we indicated, in the course of denying leave to file an original-jurisdiction case, that corporations having no direct contact with Ohio could constitutionally be brought to trial in Ohio because they dumped pollutants into streams outside Ohio's limits which ultimately, through the action of the water, reach Lake Erie and affected Ohio. No corporate acts, only their consequences, occurred in Ohio. The stream of commerce is just as natural a force as a stream of water, and it was equally predictable that the cars petitioners released would reach distant States.10 46 The Court accepts that a State may exercise jurisdiction over a distributor which "serves" that State "indirectly" by "deliver[ing] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State." 444 U.S., at 297-298, 100 S.Ct., at 567. It is difficult to see why the Constitution should distinguish between a case involving goods which reach a distant State through a chain of distribution and a case involving goods which reach the same State because a consumer, using them as the dealer knew the customer would, took them there.11 In each case the seller purposefully injects the goods into the stream of commerce and those goods predictably are used in the forum State.12 47 Furthermore, an automobile seller derives substantial benefits from States other than its own. A large part of the value of automobiles is the extensive, nationwide network of highways. Significant portions of that network have been constructed by and are maintained by the individual States, including Oklahoma. The States, through their highway programs, contribute in a very direct and important way to the value of petitioners' businesses. Additionally, a network of other related dealerships with their service departments operates throughout the country under the protection of the laws of the various States, including Oklahoma, and enhances the value of petitioners' businesses by facilitating their customers' traveling. 48 Thus, the Court errs in its conclusion, 444 U.S., at 299, 100 S.Ct., at 568 (emphasis added), that "petitioners have no 'contacts, ties, or relations' " with Oklahoma. There obviously are contacts, and, given Oklahoma's connection to the litigation, the contacts are sufficiently significant to make it fair and reasonable for the petitioners to submit to Oklahoma's jurisdiction. III 49 It may be that affirmance of the judgments in these cases would approach the outer limits of International Shoe's jurisdictional principle. But that principle, with its almost exclusive focus on the rights of defendants, may be outdated. As Mr. Justice MARSHALL wrote in Shaffer v. Heitner, 433 U.S., at 212, 97 S.Ct., at 2584: " '[T]raditional notions of fair play and substantial justice' can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures . . . ." 50 International Shoe inherited its defendant focus from Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), and represented the last major step this Court has taken in the long process of liberalizing the doctrine of personal jurisdiction. Though its flexible approach represented a major advance, the structure of our society has changed in many significant ways since International Shoe was decided in 1945. Mr. Justice Black, writing for the Court in McGee v. International Life Ins. Co., 355 U.S. 220, 222, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957), recognized that "a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents." He explained the trend as follows: 51 "In part this is attributable to the fundamental transformation of our national economy over the years. Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." Id., at 222-223, 78 S.Ct., at 201. 52 As the Court acknowledges, 444 U.S., at 292-293, 100 S.Ct., at 565, both the nationalization of commerce and the ease of transportation and communication have accelerated in the generation since 1957.13 The model of society on which the International Shoe Court based its opinion is no longer accurate. Business people, no matter how local their businesses, cannot assume that goods remain in the business' locality. Customers and goods can be anywhere else in the country usually in a matter of hours and always in a matter of a very few days. 53 In answering the question whether or not it is fair and reasonable to allow a particular forum to hold a trial binding on a particular defendant, the interests of the forum State and other parties loom large in today's world and surely are entitled to as much weight as are the interests of the defendant. The "orderly administration of the laws" provides a firm basis for according some protection to the interests of plaintiffs and States as well as of defendants.14 Certainly, I cannot see how a defendant's right to due process is violated if the defendant suffers no inconvenience. See 444 U.S., at 294, 100 S.Ct., at 565. 54 The conclusion I draw is that constitutional concepts of fairness no longer require the extreme concern for defendants that was once necessary. Rather, as I wrote in dissent from Shaffer v. Heitner, supra, 433 U.S., at 220, 97 S.Ct., at 2588 (emphasis added), minimum contacts must exist "among the parties, the contested transaction, and the forum State."15 The contacts between any two of these should not be determinative. "[W]hen a suitor seeks to lodge a suit in a State with a substantial interest in seeing its own law applied to the transaction in question, we could wisely act to minimize conflicts, confusion, and uncertainty by adopting a liberal view of jurisdiction, unless considerations of fairness or efficiency strongly point in the opposite direction."16 433 U.S., at 225-226, 97 S.Ct., at 2591. Mr. Justice Black, dissenting in Hanson v. Denckla, 357 U.S., at 258-259, 78 S.Ct., at 1242, expressed similar concerns by suggesting that a State should have jurisdiction over a case growing out of a transaction significantly related to that State "unless litigation there would impose such a heavy and disproportionate burden on a nonresident defendant that it would offend what this Court has referred to as 'traditional notions of fair play and substantial justice.' "17 Assuming that a State gives a nonresident defendant adequate notice and opportunity to defend, I do not think the Due Process Clause is offended merely because the defendant has to board a plane to get to the site of the trial. 55 The Court's opinion in No. 78-1078 suggests that the defendant ought to be subject to a State's jurisdiction only if he has contacts with the State "such that he should reasonably anticipate being haled into court there."18 444 U.S., at 297, 100 S.Ct., at 567. There is nothing unreasonable or unfair, however, about recognizing commercial reality. Given the tremendous mobility of goods and people, and the inability of businessmen to control where goods are taken by customers (or retailers), I do not think that the defendant should be in complete control of the geographical stretch of his amenability to suit. Jurisdiction is no longer premised on the notion that nonresident defendants have somehow impliedly consented to suit. People should understand that they are held responsible for the consequences of their actions and that in our society most actions have consequences affecting many States. When an action in fact causes injury in another State, the actor should be prepared to answer for it there unless defending in that State would be unfair for some reason other than that a state boundary must be crossed.19 56 In effect the Court is allowing defendants to assert the sovereign rights of their home States. The expressed fear is that otherwise all limits on personal jurisdiction would disappear. But the argument's premise is wrong. I would not abolish limits on jurisdiction or strip state boundaries of all significance, see Hanson, supra, 357 U.S., at 260, 78 S.Ct., at 1243 (Black, J., dissenting); I would still require the plaintiff to demonstrate sufficient contacts among the parties, the forum, and the litigation to make the forum a reasonable State in which to hold the trial.20 57 I would also, however, strip the defendant of an unjustified veto power over certain very appropriate fora—a power the defendant justifiably enjoyed long ago when communication and travel over long distances were slow and unpredictable and when notions of state sovereignty were impractical and exaggerated. But I repeat that that is not today's world. If a plaintiff can show that his chosen forum State has a sufficient interest in the litigation (or sufficient contacts with the defendant), then the defendant who cannot show some real injury to a constitutionality protected interest, see O'Connor v. Lee-Hy Paving Corp., 579 F.2d, at 201, should have no constitutional excuse not to appear.21 58 The plaintiffs in each of these cases brought suit in a forum with which they had significant contacts and which had significant contacts with the litigation. I am not convinced that the defendants would suffer any "heavy and disproportionate burden" in defending the suits. Accordingly, I would hold that the Constitution should not shield the defendants from appearing and defending in the plaintiffs' chosen fora. 59 Mr. Justice MARSHALL, with whom Mr. Justice BLACKMUN joins, dissenting. 60 For over 30 years the standard by which to measure the constitutionally permissible reach of state-court jurisdiction has been well established: 61 "[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe, Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). 62 The corollary, that the Due Process Clause forbids the assertion of jurisdiction over a defendant "with which the state has no contacts, ties, or relations," 326 U.S., at 319, 66 S.Ct., at 160, is equally clear. The concepts of fairness and substantial justice as applied to an evaluation of "the quality and nature of the [defendant's] activity," ibid., are not readily susceptible of further definition, however, and it is not surprising that the constitutional standard is easier to state than to apply. 63 This is a difficult case, and reasonable minds may differ as to whether respondents have alleged a sufficient "relationship among the defendant[s], the forum, and the litigation," Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977), to satisfy the requirements of International Shoe. I am concerned, however, that the majority has reached its result by taking an unnecessarily narrow view of petitioners' forum-related conduct. The majority asserts that "respondents seek to base jurisdiction on one, isolated occurrence and whatever inferences can be drawn therefrom: the fortuitous circumstance that a single Audi automobile, sold in New York to New York residents, happened to suffer an accident while passing through Oklahoma." Ante, at 295. If that were the case, I would readily agree that the minimum contacts necessary to sustain jurisdiction are not present. But the basis for the assertion of jurisdiction is not the happenstance that an individual over whom petitioner had no control made a unilateral decision to take a chattel with him to a distant State. Rather, jurisdiction is premised on the deliberate and purposeful actions of the defendants themselves in choosing to become part of a nationwide, indeed a global, network for marketing and servicing automobiles. 64 Petitioners are sellers of a product whose utility derives from its mobility. The unique importance of the automobile in today's society, which is discussed in Mr. Justice BLACKMUN'S dissenting opinion, post, at 318, needs no further elaboration. Petitioners know that their customers buy cars not only to make short trips, but also to travel long distances. In fact, the nationwide service network with which they are affiliated was designed to facilitate and encourage such travel. Seaway would be unlikely to sell many cars if authorized service were available only in Massena, N. Y. Moreover, local dealers normally derive a substantial portion of their revenues from their service operations and thereby obtain a further economic benefit from the opportunity to service cars which were sold in other States. It is apparent that petitioners have not attempted to minimize the chance that their activities will have effects in other States; on the contrary, they have chosen to do business in a way that increases that chance, because it is to their economic advantage to do so. 65 To be sure, petitioners could not know in advance that this particular automobile would be driven to Oklahoma. They must have anticipated, however, that a substantial portion of the cars they sold would travel out of New York. Seaway, a local dealer in the second most populous State, and WorldWide, one of only seven regional Audi distributors in the entire country, see Brief for Respondents 2, would scarcely have been surprised to learn that a car sold by them had been driven in Oklahoma on Interstate 44, a heavily traveled transcontinental highway. In the case of the distributor, in particular, the probability that some of the cars it sells will be driven in every one of the contiguous States must amount to a virtual certainty. This knowledge should alert a reasonable businessman to the likelihood that a defect in the product might manifest itself in the forum State—not because of some unpredictable, aberrant, unilateral action by a single buyer, but in the normal course of the operation of the vehicles for their intended purpose. 66 It is misleading for the majority to characterize the argument in favor of jurisdiction as one of " 'foreseeability' alone." Ante, at 295. As economic entities petitioners reach out from New York, knowingly causing effects in other States and receiving economic advantage both from the ability to cause such effects themselves and from the activities of dealers and distributors in other States. While they did not receive revenue from making direct sales in Oklahoma, they intentionally became part of an interstate economic network, which included dealerships in Oklahoma, for pecuniary gain. In light of this purposeful conduct I do not believe it can be said that petitioners "had no reason to expect to be haled before a[n Oklahoma] court." Shaffer v. Heitner, supra, 433 U.S., at 216, 97 S.Ct., at 2586; see ante, at 297, and Kulko v. California Superior Court, 436 U.S. 84, 97-98, 98 S.Ct. 1690, 1699-1700, 94 L.Ed.2d 132 (1978). 67 The majority apparently acknowledges that if a product is purchased in the forum State by a consumer, that State may assert jurisdiction over everyone in the chain of distribution. See ante, at 297-298. With this I agree. But I cannot agree that jurisdiction is necessarily lacking if the product enters the State not through the channels of distribution but in the course of its intended use by the consumer. We have recognized the role played by the automobile in the expansion of our notions of personal jurisdiction. See Shaffer v. Heitner, supra, 433 U.S., at 204, 97 S.Ct., at 2579; Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). Unlike most other chattels, which may find their way into States far from where they were purchased because their owner takes them there, the intended use of the automobile is precisely as a means of traveling from one place to another. In such a case, it is highly artificial to restrict the concept of the "stream of commerce" to the chain of distribution from the manufacturer to the ultimate consumer. 68 I sympathize with the majority's concern that the persons ought to be able to structure their conduct so as not to be subject to suit in distant forums. But that may not always be possible. Some activities by their very nature may foreclose the option of conducting them in such a way as to avoid subjecting oneself to jurisdiction in multiple forums. This is by no means to say that all sellers of automobiles should be subject to suit everywhere; but a distributor of automobiles to a multistate market and a local automobile dealer who makes himself part of a nationwide network of dealerships can fairly expect that the cars they sell may cause injury in distant States and that they may be called on to defend a resulting lawsuit there. 69 In light of the quality and nature of petitioners' activity, the majority's reliance on Kulko v. California Superior Court, supra, is misplaced. Kulko involved the assertion of state-court jurisdiction over a nonresident individual in connection with an action to modify his child custody rights and support obligations. His only contact with the forum State was that he gave his minor child permission to live there with her mother. In holding that exercise of jurisdiction violated the Due Process Clause, we emphasized that the cause of action as well as the defendant's actions in relation to the forum State arose "not from the defendant's commercial transactions in interstate commerce, but rather from his personal, domestic relations," 436 U.S., at 97, 98 S.Ct., at 1699 (emphasis supplied), contrasting Kulko's actions with those of the insurance company in McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), which were undertaken for commercial benefit.* 70 Manifestly, the "quality and nature" of commercial activity is different, for purposes of the International Shoe test, from actions from which a defendant obtains no economic advantage. Commercial activity is more likely to cause effects in a larger sphere, and the actor derives an economic benefit from the activity that makes it fair to require him to answer for his conduct where its effects are felt. The profits may be used to pay the costs of suit, and knowing that the activity is likely to have effects in other States the defendant can readily insure against the costs of those effects, thereby sparing himself much of the inconvenience of defending in a distant forum. 71 Of course, the Constitution forbids the exercise of jurisdiction if the defendant had no judicially cognizable contacts with the forum. But as the majority acknowledges, if such contacts are present the jurisdictional inquiry requires a balancing of various interests and policies. See ante, at 292; Rush v. Savchuk, 444 U.S., at 332, 100 S.Ct., at 579. I believe such contacts are to be found here and that, considering all of the interests and policies at stake, requiring petitioners to defend this action in Oklahoma is not beyond the bounds of the Constitution. Accordingly, I dissent. 72 Mr. Justice BLACKMUN, dissenting. 73 I confess that I am somewhat puzzled why the plaintiffs in this litigation are so insistent that the regional distributor and the retail dealer, the petitioners here, who handled the ill-fated Audi automobile involved in this litigation, be named defendants. It would appear that the manufacturer and the importer, whose subjectability to Oklahoma jurisdiction is not challenged before this Court, ought not to be judgment-proof. It may, of course, ultimately amount to a contest between insurance companies that, once begun, is not easily brought to a termination. Having made this much of an observation, I pursue it no further. 74 For me, a critical factor in the disposition of the litigation is the nature of the instrumentality under consideration. It has been said that we are a nation on wheels. What we are concerned with here is the automobile and its peripatetic character. One need only examine our national network of interstate highways, or make an appearance on one of them, or observe the variety of license plates present not only on those highways but in any metropolitan area, to realize that any automobile is likely to wander far from its place of licensure or from its place of distribution and retail sale. Miles per gallon on the highway (as well as in the city) and mileage per tankful are familiar allegations in manufacturers' advertisements today. To expect that any new automobile will remain in the vicinity of its retail sale—like the 1914 electric driven car by the proverbial "little old lady"—is to blink at reality. The automobile is intended for distance as well as for transportation within a limited area. 75 It therefore seems to me not unreasonable—and certainly not unconstitutional and beyond the reach of the principles laid down in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny—to uphold Oklahoma jurisdiction over this New York distributor and this New York dealer when the accident happened in Oklahoma. I see nothing more unfair for them than for the manufacturer and the importer. All are in the business of providing vehicles that spread out over the highways of our several States. It is not too much to anticipate at the time of distribution and at the time of retail sale that this Audi would be in Oklahoma. Moreover, in assessing "minimum contacts," foreseeable use in another State seems to me to be little different from foreseeable resale in another State. Yet the Court declares this distinction determinative. Ante, at 297-299. 76 Mr. Justice BRENNAN points out in his dissent, 444 U.S., at 307, 100 S.Ct., at 585, that an automobile dealer derives substantial benefits from States other than its own. The same is true of the regional distributor. Oklahoma does its best to provide safe roads. Its police investigate accidents. It regulates driving within the State. It provides aid to the victim and thereby, it is hoped, lessens damages. Accident reports are prepared and made available. All this contributes to and enhances the business of those engaged professionally in the distribution and sale of automobiles. All this also may benefit defendants in the very lawsuits over which the State asserts jurisdiction. 77 My position need not now take me beyond the automobile and the professional who does business by way of distributing and retailing automobiles. Cases concerning other instrumentalities will be dealt with as they arise and in their own contexts. 78 I would affirm the judgment of the Supreme Court of Oklahoma. Because the Court reverses that judgment, it will now be about parsing every variant in the myriad of motor vehicles fact situations that present themselves. Some will justify jurisdiction and others will not. All will depend on the "contact" that the Court sees fit to perceive in the individual case. 1 The driver of the other automobile does not figure in the present litigation. 2 Kay Robinson sued on her own behalf. The two children sued through Harry Robinson as their father and next friend. 3 Volkswagen also entered a special appearance in the District Court, but unlike World-Wide and Seaway did not seek review in the Supreme Court of Oklahoma and is not a petitioner here. Both Volkswagen and Audi remain as defendants in the litigation pending before the District Court in Oklahoma. 4 The papers filed by the petitioners also claimed that the District Court lacked "venue of the subject matter," App. 9, or "venue over the subject matter," id., at 11. 5 The District Court's rulings are unreported, and appear at App. 13 and 20. 6 Five judges joined in the opinion. Two concurred in the result, without opinion, and one concurred in part and dissented in part, also without opinion. 7 This subsection provides: "A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action or claim for relief arising from the person's . . . causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state . . . ." The State Supreme Court rejected jurisdiction based on § 1701.03(a)(3), which authorizes jurisdiction over any person "causing tortious injury in this state by an act or omission in this state." Something in addition to the infliction of tortious injury was required. 8 Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okla.1976); Carmack v. Chemical Bank New York Trust Co., 536 P.2d 897 (Okla.1975); Hines v. Clendenning, 465 P.2d 460 (Okla.1970). 9 Cf. Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128 (1968); Granite States Volkswagen, Inc. v. District Court, 177 Colo. 42, 492 P.2d 624 (1972); Pellegrini v. Sachs & Sons, 522 P.2d 704 (Utah 1974); Oliver v. American Motors Corp., 70 Wash.2d 875, 425 P.2d 647 (1967). 10 Respondents argue, as a threshold matter, that petitioners waived any objections to personal jurisdiction by (1) joining with their special appearances a challenge to the District Court's subject-matter jurisdiction, see n. 4, supra, and (2) taking depositions on the merits of the case in Oklahoma. The trial court, however, characterized the appearances as "special," and the Oklahoma Supreme Court, rather than finding jurisdiction waived, reached and decided the statutory and constitutional questions. Cf. Kulko v. California Superior Court, 436 U.S. 84, 91, n. 5, 98 S.Ct. 1690, 1696, n. 5, 56 L.Ed.2d 132 (1978). 11 Respondents' counsel, at oral argument, see Tr. of Oral Arg. 19-22, 29, sought to limit the reach of the foreseeability standard by suggesting that there is something unique about automobiles. It is true that automobiles are uniquely mobile, see Tyson v. Whitaker & Son, Inc., 407 A.2d 1, 6, and n. 11 (Me.1979) (McKusick, C. J.), that they did play a crucial role in the expansion of personal jurisdiction through the fiction of implied consent, e. g., Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927), and that some of the cases have treated the automobile as a "dangerous instrumentality." But today, under the regime of International Shoe, we see no difference for jurisdictional purposes between an automobile and any other chattel. The "dangerous instrumentality" concept apparently was never used to support personal jurisdiction; and to the extent it has relevance today it bears not on jurisdiction but on the possible desirability of imposing substantive principles of tort law such as strict liability. 12 As we have noted, petitioners earn no direct revenues from these service centers. See supra, at 289. 1 In fact, a courtroom just across the state line from a defendant may often be far more convenient for the defendant than a courtroom in a distant corner of his own State. 2 The States themselves, of course, remain free to choose whether to extend their jurisdiction to embrace all defendants over whom the Constitution would permit exercise of jurisdiction. 3 The plaintiff asserted jurisdiction pursuant to Minn.Stat. § 571.41, subd. 2 (1978), which allows garnishment of an insurer's obligation to defend and indemnify its insured. See 444 U.S., at 322-323, n. 3, 100 S.Ct., at 574, n. 3, and accompanying text. The Minnesota Supreme Court has interpreted the statute as allowing suit only to the insurance policy's liability limit. The court has held that the statute embodies the rule of Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966). 4 To say that these considerations are relevant is a far cry from saying that they are "substituted for . . . contacts with the defendant and the cause of action." 444 U.S., at 332, 100 S.Ct., at 579. The forum's interest in the litigation is an independent point of inquiry even under traditional readings of International Shoe's progeny. If there is a shift in focus, it is not away from "the relationship among the defendant, the forum, and the litigation." 444 U.S., at 332, 100 S.Ct., at 579 (emphasis added). Instead it is a shift within the same accepted relationship from the connections between the defendant and the forum to those between the forum and the litigation. 5 In every International Shoe inquiry, the defendant, necessarily, is outside the forum State. Thus it is inevitable that either the defendant or the plaintiff will be inconvenienced. The problem existing at the time of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, that a resident plaintiff could obtain a binding judgment against an unsuspecting, distant defendant, has virtually disappeared in this age of instant communication and virtually instant travel. 6 It is true that the insurance contract is not the subject of the litigation. 444 U.S., at 329, 100 S.Ct., at 578. But one of the undisputed clauses of the insurance policy is that the insurer will defend this action and pay any damages assessed, up to the policy limit. The very purpose of the contract is to relieve the insured from having to defend himself, and under the state statute there could be no suit absent the insurance contract. Thus, in a real sense, the insurance contract is the source of the suit. See Shaffer v. Heitner, 433 U.S. 186, 207, 97 S.Ct. 2569, 2581, 53 L.Ed.2d 683 (1977). 7 Were the defendant a real party subject to actual liability or were there significant noneconomic consequences such as those suggested by the Court's note 20, 444 U.S., at 331, 100 S.Ct., at 579, a more substantial connection with the forum State might well be constitutionally required. 8 On the basis of this fact the state court inferred that the petitioners derived substantial revenue from goods used in Oklahoma. The inference is not without support. Certainly, were use of goods accepted as a relevant contact, a plaintiff would not need to have an exact count of the number of petitioners' cars that are used in Oklahoma. 9 Moreover, imposing liability in this case would not so undermine certainty as to destroy an automobile dealer's ability to do business. According jurisdiction does not expand liability except in the marginal case where a plaintiff cannot afford to bring an action except in the plaintiff's own State. In addition, these petitioners are represented by insurance companies. They not only could, but did, purchase insurance to protect them should they stand trial and lose the case. The costs of the insurance no doubt are passed on to customers. 10 One might argue that it was more predictable that the pollutants would reach Ohio than that one of petitioners' cars would reach Oklahoma. The Court's analysis, however, excludes jurisdiction in a contiguous State such as Pennsylvania as surely as in more distant States such as Oklahoma. 11 For example, I cannot understand the constitutional distinction between selling an item in New Jersey and selling an item in New York expecting it to be used in New Jersey. 12 The manufacturer in the case cited by the Court, Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), had no more control over which States its goods would reach than did the petitioners in this case. 13 Statistics help illustrate the amazing expansion in mobility since International Shoe. The number of revenue passenger-miles flown on domestic and international flights increased by nearly three orders of magnitude between 1945 (450 million) and 1976 (179 billion). U.S. Department of Commerce, Historical Statistics of the United States, pt. 2, p. 770 (1975); U.S. Department of Commerce, Statistical Abstract of the United States 670 (1978). Automobile vehicle-miles (including passenger cars, buses, and trucks) driven in the United States increased by a relatively modest 500% during the same period, growing from 250 billion in 1945 to 1,409 billion in 1976. Historical Statistics, supra, at 718; Statistical Abstract, supra, at 647. 14 The Court has recognized that there are cases where the interests of justice can turn the focus of the jurisdictional inquiry away from the contacts between a defendant and the forum State. For instance, the Court indicated that the requirement of contacts may be greatly relaxed (if indeed any personal contacts would be required) where a plaintiff is suing a nonresident defendant to enforce a judgment procured in another State. Shaffer v. Heitner, 433 U.S., at 210-211, nn. 36, 37, 97 S.Ct., at 2582-2583, nn. 36, 37. 15 In some cases, the inquiry will resemble the inquiry commonly undertaken in determining which State's law to apply. That it is fair to apply a State's law to a nonresident defendant is clearly relevant in determining whether it is fair to subject the defendant to jurisdiction in that State. Shaffer v. Heitner, supra, at 225, 97 S.Ct., at 2590 (BRENNAN, J., dissenting); Hanson v. Denckla, 357 U.S. 235, 258, 78 S.Ct. 1228, 1242, 2 L.Ed.2d 1283 (1958) (Black, J., dissenting). See n. 19, infra. 16 Such a standard need be no more uncertain than the Court's test "in which few answers will be written 'in black and white. The greys are dominant and even among them the shades are innumerable.' Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. 1213, 1216, 92 L.Ed. 1561 (1948)." Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978). 17 This strong emphasis on the State's interest is nothing new. This Court, permitting the forum to exercise jurisdiction over nonresident claimants to a trust largely on the basis of the forum's interest in closing the trust, stated: "[T]he interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard." Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). 18 The Court suggests that this is the critical foreseeability rather than the likelihood that the product will go to the forum State. But the reasoning begs the question. A defendant cannot know if his actions will subject him to jurisdiction in another State until we have declared what the law of jurisdiction is. 19 One consideration that might create some unfairness would be if the choice of forum also imposed on the defendant an unfavorable substantive law which the defendant could justly have assumed would not apply. See n. 15, supra. 20 For instance, in No. 78-952, if the plaintiff were not a bona fide resident of Minnesota when the suit was filed or if the defendant were subject to financial liability, I might well reach a different result. In No. 78-1078, I might reach a different result if the accident had not occurred in Oklahoma. 21 Frequently, of course, the defendant will be able to influence the choice of forum through traditional doctrines, such as venue or forum non conveniens, permitting the transfer of litigation. Shaffer v. Heitner, 433 U.S., at 228, n. 8, 97 S.Ct., at 2592, n. 8 (BRENNAN, J., dissenting). * Similarly, I believe the Court in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), was influenced by the fact that trust administration has traditionally been considered a peculiarly local activity.

34

444 U.S. 394 100 S.Ct. 624 62 L.Ed.2d 575 UNITED STATES, Petitioner,v.Clifford BAILEY et al. UNITED STATES, Petitioner, v. James T. COGDELL. No. 78-990. Argued Nov. 7, 1979. Decided Jan. 21, 1980. Syllabus Upon being apprehended after their escape from the District of Columbia jail, respondents were indicted for violating 18 U.S.C. § 751(a), which governs escape from federal custody. At the trial of respondents Cooley, Bailey, and Walker, the District Court, after respondents had adduced evidence of conditions in the jail and their reasons for not returning to custody, rejected their proffered jury instruction on duress as a defense, ruling that they had failed as a matter of law to present evidence sufficient to support such a defense because they had not turned themselves in after they had escaped the allegedly coercive conditions, and, after receiving instructions to disregard the evidence of the jail conditions, the jury convicted respondents of violating § 751(a). At respondent Cogdell's trial, the District Court ruled that, absent testimony of what he did between the time of his escape and his apprehension, he could not present evidence of conditions at the jail, and he was also convicted by the jury of violating § 751(a). The Court of Appeals reversed each respondent's conviction and remanded for new trials, holding that the District Court should have allowed the respective juries to consider the evidence of coercive conditions at the jail in determining whether respondents had formulated the requisite intent to sustain a conviction under § 751(a), which required the prosecution to prove that a particular defendant left federal custody voluntarily, without permission, and "with an intent to avoid confinement," an escapee not acting with the requisite intent if he escaped in order to avoid "non-confinement conditions" as opposed to "normal aspects of 'confinement.' " The court further held that since respondents had been indicted for fleeing and escaping on or about a certain date and not for leaving and staying away from custody, and since the jury instructions gave the impression that respondents were being tried only for leaving the jail on a certain date, and not for failing to return at some later date, neither respondents nor the juries were acquainted with the proposition that the escapes in question were continuing offenses, an omission which constituted a violation of respondents' right to a jury trial. Held: 1. The prosecution fulfills its burden under § 751(a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission. Nothing in § 751(a)'s language or legislative history indicates that Congress intended to require such a heightened standard of culpability or such a narrow definition of confinement as the Court of Appeals required. Pp. 403-409. 2. In order to be entitled to an instruction on duress or necessity as a defense to a charge of escape, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure, and an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. On the record here, such evidence and testimony were lacking, and hence respondents were not entitled to any instruction on duress or necessity. Pp. 409-415. (a) Escape from federal custody as defined in § 751(a) is a continuing offense, and an escapee can be held liable for failure to return to custody as well as for his initial departure. Pp. 413-414. (b) But there was no significant "variance" in the indictments here merely because respondents were not indicted under a theory of escape as a continuing offense and because the District Court did not explain such theory to the juries. The indictments, which tracked closely § 751(a)'s language, were sufficient under the standard deeming an indictment sufficient "if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense," Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590. And it was unnecessary for the District Court to elaborate for the juries' benefit on the continuing nature of the charged offense, where the evidence failed as a matter of law in a crucial particular to reach the minimum threshold that would have required an instruction on respondent's theory of the case generally. Pp. 414-415. 3. If an affirmative defense consists of several elements and testimony supporting one element is, as here, insufficient to sustain it even if believed, the trial court and jury need not be burdened with testimony supporting other elements of the defense. If it were held that the juries in these cases should have been subjected to a potpourri of evidence as to the jail conditions even though a critical element of the proffered defense of duress or necessity was absent, every trial under § 751(a) would be converted into a hearing on the current state of the federal penal system. Pp. 426-417. 190 U.S.App.D.C. 142, 585 F.2d 1087, and 190 U.S.App.D.C. 185, 585 F.2d 1130, reversed. Edwin S. Kneedler, Washington, D.C., for petitioner. Richard S. Kohn, Washington, D.C., for respondents. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 In the early morning hours of August 26, 1976, respondents Clifford Bailey, James T. Cogdell, Ronald C. Cooley, and Ralph Walker, federal prisoners at the District of Columbia jail, crawled through a window from which a bar had been removed, slid down a knotted bedsheet, and escaped from custody. Federal authorities recaptured them after they had remained at large for a period of time ranging from one month to three and one-half months. Upon their apprehension, they were charged with violating 18 U.S.C. § 751(a), which governs escape from federal custody.1 At their trials, each of the respondents adduced or offered to adduce evidence as to various conditions and events at the District of Columbia jail, but each was convicted by the jury. The Court of Appeals for the District of Columbia Circuit reversed the convictions by a divided vote, holding that the District Court had improperly precluded consideration by the respective juries of respondents' tendered evidence. We granted certiorari, 440 U.S. 957, 99 S.Ct. 1497, 59 L.Ed.2d 770, and now reverse the judgments of the Court of Appeals. 2 In reaching our conclusion, we must decide the state of mind necessary for violation of § 751(a) and the elements that constitute defenses such as duress and necessity. In explaining the reasons for our decision, we find ourselves in a position akin to that of the mother crab who is trying to teach her progeny to walk in a straight line, and finally in desperation exclaims: "Don't do as I do, do as I say." The Act of Congress we construe consists of one sentence set forth in the margin, n. 1, supra ; our own pragmatic estimate, expressed infra, at 417, is that "in general, trials for violations of § 751(a) should be simple affairs." Yet we have written, reluctantly but we believe necessarily, a somewhat lengthy opinion supporting our conclusion, because in enacting the Federal Criminal Code Congress legislated in the light of a long history of case law that is frequently relevant in fleshing out the bare bones of a crime that Congress may have proscribed in a single sentence. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). 3 * All respondents requested jury trials and were initially scheduled to be tried jointly. At the last minute, however, respondent Cogdell secured a severance. Because the District Court refused to submit to the jury any instructions on respondents' defense of duress or necessity and did not charge the jury that escape was a continuing offense, we must examine in some detail the evidence brought out at trial. 4 The prosecution's case in chief against Bailey, Cooley, and Walker was brief. The Government introduced evidence that each of the respondents was in federal custody on August 26, 1976, that they had disappeared, apparently through a cell window, at approximately 5:35 a. m. on that date, and that they had been apprehended individually between September 27 and December 13, 1976. 5 Respondents' defense of duress or necessity centered on the conditions in the jail during the months of June, July, and August 1976, and on various threats and beatings directed at them during that period. In describing the conditions at the jail, they introduced evidence of frequent fires in "Northeast One," the maximum-security cellblock occupied by respondents prior to their escape. Construed in the light most favorable to them, this evidence demonstrated that the inmates of Northeast One, and on occasion the guards in that unit, set fire to trash, bedding, and other objects thrown from the cells. According to the inmates, the guards simply allowed the fires to burn until they went out. Although the fires apparently were confined to small areas and posed no substantial threat of spreading through the complex, poor ventilation caused smoke to collect and linger in the cellblock. 6 Respondents Cooley and Bailey also introduced testimony that the guards at the jail had subjected them to beatings and to threats of death. Walker attempted to prove that he was an epileptic and had received inadequate medical attention for his seizures. 7 Consistently during the trial, the District Court stressed that, to sustain their defenses, respondents would have to introduce some evidence that they attempted to surrender or engaged in equivalent conduct once they had freed themselves from the conditions they described. But the court waited for such evidence in vain. Respondent Cooley, who had eluded the authorities for one month, testified that his "people" had tried to contact the authorities, but "never got in touch with anybody." App. 119. He also suggested that someone had told his sister that the Federal Bureau of Investigation would kill him when he was apprehended. 8 Respondent Bailey, who was apprehended on November 19, 1976, told a similar story. He stated that he "had the jail officials called several times," but did not turn himself in because "I would still be under the threats of death." Like Cooley, Bailey testified that "the FBI was telling my people that they was going to shoot me." Id., at 169, 175-176. 9 Only respondent Walker suggested that he had attempted to negotiate a surrender. Like Cooley and Bailey, Walker testified that the FBI had told his "people" that they would kill him when they recaptured him. Nevertheless, according to Walker, he called the FBI three times and spoke with an agent whose name he could not remember. That agent allegedly assured him that the FBI would not harm him, but was unable to promise that Walker would not be returned to the D.C. jail. Id., at 195-200.2 Walker testified that he last called the FBI in mid-October. He was finally apprehended on December 13, 1976. 10 At the close of all the evidence, the District Court rejected respondents' proffered instruction on duress as a defense to prison escape.3 The court ruled that respondents had failed as a matter of law to present evidence sufficient to support such a defense because they had not turned themselves in after they had escaped the allegedly coercive conditions. After receiving instructions to disregard the evidence of the conditions in the jail, the jury convicted Bailey, Cooley, and Walker of violating § 751(a). 11 Two months later, respondent Cogdell came to trial before the same District Judge who had presided over the trial of his co-respondents. When Cogdell attempted to offer testimony concerning the allegedly inhumane conditions at the D.C. jail, the District Judge inquired into Cogdell's conduct between his escape on August 26 and his apprehension on September 28. In response to Cogdell's assertion that he "may have written letters," the District Court specified that Cogdell could testify only as to "what he did . . . [n]ot what he may have done." App. 230. Absent such testimony, however, the District Court ruled that Cogdell could not present evidence of conditions at the jail. Cogdell subsequently chose not to testify on his own behalf, and was convicted by the jury of violating § 751(a). 12 By a divided vote, the Court of Appeals reversed each respondent's conviction and remanded for new trials. See 190 U.S.App.D.C. 142, 585 F.2d 1087 (1978); 190 U.S. App.D.C. 185, 585 F.2d 1130 (1978). The majority concluded that the District Court should have allowed the jury to consider the evidence of coercive conditions in determining whether the respondents had formulated the requisite intent to sustain a conviction under § 751(a). According to the majority, § 751(a) required the prosecution to prove that a particular defendant left federal custody voluntarily, without permission, and "with an intent to avoid confinement." 190 U.S.App.D.C., at 148, 585 F.2d, at 1093. The majority then defined the word "confinement" as encompassing only the "normal aspects" of punishment prescribed by our legal system. Thus, where a prisoner escapes in order to avoid "non-confinement" conditions such as beatings or homosexual attacks, he would not necessarily have the requisite intent to sustain a conviction under § 751(a). According to the majority: 13 "When a defendant introduces evidence that he was subject to such 'non-confinement' conditions, the crucial factual determination on the intent issue is . . . whether the defendant left custody only to avoid these conditions or whether, in addition, the defendant also intended to avoid confinement. In making this determination the jury is to be guided by the trial court's instructions pointing out those factors that are most indicative of the presence or absence of an intent to avoid confinement." 190 U.S.App.D.C., at 148, n. 17, 585 F.2d, at 1093, n. 17 (emphasis in original). 14 Turning to the applicability of the defense of duress or necessity, the majority assumed that escape as defined by § 751(a) was a "continuing offense" as long as the escapee was at large. Given this assumption, the majority agreed with the District Court that, under normal circumstances, an escapee must present evidence of coercion to justify his continued absence from custody as well as his initial departure. Here, however, respondents had been indicted for "flee[ing] and escap[ing]" "[o]n or about August 26, 1976," and not for "leaving and staying away from custody." 190 U.S.App.D.C., at 155, 585 F.2d, at 1100 (emphasis in original). Similarly, "[t]he trial court's instructions when read as a whole clearly give the impression that [respondents] were being tried only for leaving the jail on August 26, and not for failing to return at some later date." Id., at 155, n. 50, 585 F.2d, at 1100, n. 50. Under these circumstances, the majority believed that neither respondents nor the juries were acquainted with the proposition that the escapes in question were continuing offenses. This failure, according to the majority, constituted "an obvious violation of [respondents'] constitutional right to jury trial." Id., at 156, 585 F.2d, at 1101. 15 The dissenting judge objected to what he characterized as a revolutionary reinterpretation of criminal law by the majority. He argued that the common-law crime of escape had traditionally required only "general intent," a mental state no more sophisticated than an "intent to go beyond permitted limits." Id., at 177, 585 F.2d, at 1122 (emphasis deleted). The dissent concluded that the District Court had properly removed from consideration each respondent's contention that conditions and events at the D.C. jail justified his escape, because each respondent had introduced no evidence whatsoever justifying his continued absence from jail following that escape. II 16 Criminal liability is normally based upon the concurrence of two factors, "an evil-meaning mind [and] an evil-doing hand . . . ." Morissette v. United States, 342 U.S., at 251, 72 S.Ct., at 244. In the present case, we must examine both the mental element, or mens rea, required for conviction under § 751(a) and the circumstances under which the "evil-doing hand" can avoid liability under that section because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present. 17 * Few areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime. In 1970, the National Commission on Reform of Federal Criminal Laws decried the "confused and inconsistent ad hoc approach" of the federal courts to this issue and called for "a new departure." See 1 Working Papers of the National Commission on Reform of Federal Criminal Laws 123 (hereinafter Working Papers). Although the central focus of this and other reform movements has been the codification of workable principles for determining criminal culpability, see, e. g., American Law Institute, Model Penal Code §§ 2.01-2.13 (Prop. Off. Draft 1962) (hereinafter Model Penal Code); S. 1, 94th Cong., 2d Sess., §§ 301-303 (1976), a byproduct has been a general rethinking of traditional mens-rea analysis. 18 At common law, crimes generally were classified as requiring either "general intent" or "specific intent." This venerable distinction, however, has been the source of a good deal of confusion. As one treatise explained: 19 "Sometimes 'general intent' is used in the same way as 'criminal intent' to mean the general notion of mens rea, while 'specific intent' is taken to mean the mental state required for a particular crime. Or, 'general intent' may be used to encompass all forms of the mental state requirement, while 'specific intent' is limited to the one mental state of intent. Another possibility is that 'general intent' will be used to characterize an intent to do something on an undetermined occasion, and 'specific intent' to denote an intent to do that thing at a particular time and place." W. LaFave & A. Scott, Handbook on Criminal Law § 28, pp. 201-202 (1972) (footnotes omitted) (hereinafter LaFave & Scott). 20 This ambiguity has led to a movement away from the traditional dichotomy of intent and toward an alternative analysis of mens rea. See id., at 202. This new approach, exemplified in the American Law Institute's Model Penal Code, is based on two principles. First, the ambiguous and elastic term "intent" is replaced with a hierarchy of culpable states of mind. The different levels in this hierarchy are commonly identified, in descending order of culpability, as purpose, knowledge, recklessness, and negligence.4 See LaFave & Scott 194; Model Penal Code § 2.02. Perhaps the most significant, and most esoteric, distinction drawn by this analysis is that between the mental states of "purpose" and "knowledge." As we pointed out in United States v. United States Gypsum Co., 438 U.S. 422, 445, 98 S.Ct. 2864, 2877, 57 L.Ed.2d 854 (1978), a person who causes a particular result is said to act purposefully if " 'he consciously desires that result, whatever the likelihood of that result happening from his conduct,' " while he is said to act knowingly if he is aware " 'that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.' "5 21 In the case of most crimes, "the limited distinction between knowledge and purpose has not been considered important since 'there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the result[s].' " United States v. United States Gypsum Co., supra, at 445, 98 S.Ct., at 2877, quoting LaFave & Scott 197. Thus in Gypsum we held that a person could be held criminally liable under § 1 of the Sherman Act if that person exchanged price information with a competitor either with the knowledge that the exchange would have unreasonable anticompetitive effects or with the purpose of producing those effects. 438 U.S., at 444-445, and n. 21, 98 S.Ct., at 2877-2878. 22 In certain narrow classes of crimes, however, heightened culpability has been thought to merit special attention. Thus, the statutory and common law of homicide often distinguishes, either in setting the "degree" of the crime or in imposing punishment, between a person who knows that another person will be killed as the result of his conduct and a person who acts with the specific purpose of taking another's life. See LaFave & Scott 196-197. Similarly, where a defendant is charged with treason, this Court has stated that the Government must demonstrate that the defendant acted with a purpose to aid the enemy. See Haupt v. United States, 330 U.S. 631, 641, 67 S.Ct. 874, 878, 91 L.Ed. 1145 (1947). Another such example is the law of inchoate offenses such as attempt and conspiracy, where a heightened mental state separates criminality itself from otherwise innocuous behavior. See Model Penal Code § 2.02, Comments, p. 125 (Tent. Draft No. 4, 1955) (hereinafter MPC Comments). 23 In a general sense, "purpose" corresponds loosely with the common-law concept of specific intent, while "knowledge" corresponds loosely with the concept of general intent. See ibid.; LaFave & Scott 201-202. Were this substitution of terms the only innovation offered by the reformers, it would hardly be dramatic. But there is another ambiguity inherent in the traditional distinction between specific intent and general intent. Generally, even time-honored common-law crimes consist of several elements, and complex statutorily defined crimes exhibit this characteristic to an even greater degree. Is the same state of mind required of the actor for each element of the crime, or may some elements require one state of mind and some another? In United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), for example, we were asked to decide whether the Government, to sustain a conviction for assaulting a federal officer under 18 U.S.C. § 111, had to prove that the defendant knew that his victim was a federal officer. After looking to the legislative history of § 111, we concluded that Congress intended to require only "an intent to assault, not an intent to assault a federal officer." 420 U.S., at 684, 95 S.Ct., at 1264. What Feola implied, the American Law Institute stated: "[C]lear analysis requires that the question of the kind of culpability required to establish the commission of an offense be faced separately with respect to each material element of the crime[.]" MPC Comments 123. See also Working Papers 131; LaFave & Scott 194. 24 Before dissecting § 751(a) and assigning a level of culpability to each element, we believe that two observations are in order. First, in performing such analysis courts obviously must follow Congress' intent as to the required level of mental culpability for any particular offense. Principles derived from common law as well as precepts suggested by the American Law Institute must bow to legislative mandates. In the case of § 751(a), however, neither the language of the statute nor the legislative history mentions the mens rea required for conviction.6 25 Second, while the suggested element-by-element analysis is a useful tool for making sense of an otherwise opaque concept, it is not the only principle to be considered. The administration of the federal system of criminal justice is confided to ordinary mortals, whether they be lawyers, judges, or jurors. This system could easily fall of its own weight if courts or scholars become obsessed with hair-splitting distinctions, either traditional or novel, that Congress neither stated nor implied when it made the conduct criminal. 26 As relevant to the charges against Bailey, Cooley, and Walker, § 751(a) required the prosecution to prove (1) that they had been in the custody of the Attorney General, (2) as the result of a conviction, and (3) that they had escaped from that custody. As for the charges against respondent Cogdell, § 751(a) required the same proof, with the exception that his confinement was based upon an arrest for a felony rather than a prior conviction. Although § 751(a) does not define the term "escape," courts and commentators are in general agreement that it means absenting oneself from custody without permission. See, e. g., 190 U.S.App.D.C., at 148, 585 F.2d, at 1093; id., at 177, 585 F.2d, at 1122 (Wilkey, J., dissenting); United States v. Wilke, 450 F.2d 877 (CA9 1971), cert. denied, 409 U.S. 918, 93 S.Ct. 250, 34 L.Ed.2d 180 (1972). See also 2 J. Bishop, Criminal Law § 1103, p. 819 (9th ed. 1923); 1 W. Burdick, Law of Crime, 462-463 (1946); R. Perkins, Criminal Law 429 (1957); 3 F. Wharton, Criminal Law § 2003, p. 2178 (11th ed. 1912). 27 Respondents have not challenged the District Court's instructions on the first two elements of the crime defined by § 751(a). It is undisputed that, on August 26, 1976, respondents were in the custody of the Attorney General as the result of either arrest on charges of felony or conviction. As for the element of "escape," we need not decide whether a person could be convicted on evidence of recklessness or negligence with respect to the limits on his freedom. A court may someday confront a case where an escapee did not know, but should have known, that he was exceeding the bounds of his confinement or that he was leaving without permission. Here, the District Court clearly instructed the juries that the prosecution bore the burden of proving that respondents "knowingly committed an act which the law makes a crime" and that they acted "knowingly, intentionally, and deliberately. . . ." App. 221-223, 231-233. At a minimum, the juries had to find that respondents knew they were leaving the jail and that they knew they were doing so without authorization. The sufficiency of the evidence to support the juries' verdicts under this charge has never seriously been questioned, nor could it be. 28 The majority of the Court of Appeals, however, imposed the added burden on the prosecution to prove as a part of its case in chief that respondents acted "with an intent to avoid confinement." While, for the reasons noted above, the word "intent" is quite ambiguous, the majority left little doubt that it was requiring the Government to prove that the respondents acted with the purpose—that is, the conscious objective—of leaving the jail without authorization. In a footnote explaining their holding, for example, the majority specified that an escapee did not act with the requisite intent if he escaped in order to avoid " 'non-confinement' conditions" as opposed to "normal aspects of 'confinement.' " 190 U.S.App.D.C., at 148, n. 17, 585 F.2d, at 1093, n. 17. 29 We find the majority's position quite unsupportable. Nothing in the language or legislative history of § 751(a) indicates that Congress intended to require either such a heightened standard of culpability or such a narrow definition of confinement. As we stated earlier, the cases have generally held that, except in narrow classes of offenses, proof that the defendant acted knowingly is sufficient to support a conviction. Accordingly, we hold that the prosecution fulfills its burden under § 751(a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission. Our holding in this respect comports with parallel definitions of the crime of escape both in the Model Penal Code and in a proposed revision of the Federal Criminal Code. See Model Penal Code §§ 2.02(3), 242.6(1); Report of Senate Committee on the Judiciary to Accompany S. 1, S. Rep. No. 94-00, pp. 333-334 (Comm. Print 1976).7 Moreover, comments accompanying the proposed revision of the Federal Criminal Code specified that the new provision covering escape "substantially carrie[d] forward existing law. . . ." Id., at 332. B 30 Respondents also contend that they are entitled to a new trial because they presented (or, in Cogdell's case, could have presented) sufficient evidence of duress or necessity to submit such a defense to the jury. The majority below did not confront this claim squarely, holding instead that, to the extent that such a defense normally would be barred by a prisoner's failure to return to custody, neither the indictment nor the jury instructions adequately described such a requirement. See 190 U.S.App.D.C., at 155-156, 585 F.2d, at 1100-1101. 31 Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity. See generally LaFave & Scott 374-384. 32 Modern cases have tended to blur the distinction between duress and necessity. In the court below, the majority discarded the labels "duress" and "necessity," choosing instead to examine the policies underlying the traditional defenses. See 190 U.S.App.D.C., at 152, 585 F.2d, at 1097. In particular, the majority felt that the defenses were designed to spare a person from punishment if he acted "under threats or conditions that a person of ordinary firmness would have been unable to resist," or if he reasonably believed that criminal action "was necessary to avoid a harm more serious than that sought to be prevented by the statute defining the offense." Id., at 152, 585 F.2d, at 1097-1098. The Model Penal Code redefines the defenses along similar lines. See Model Penal Code § 2.09 (duress) and § 3.02 (choice of evils). 33 We need not speculate now, however, on the precise contours of whatever defenses of duress or necessity are available against charges brought under § 751(a). Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, "a chance both to refuse to do the criminal act and also to avoid the threatened harm," the defenses will fail. LaFave & Scott 379.8 Clearly, in the context of prison escape, the escapee is not entitled to claim a defense of duress or necessity unless and until he demonstrates that, given the imminence of the threat, violation of § 751(a) was his only reasonable alternative. See United States v. Boomer, 571 F.2d 543, 545 (CA10), cert. denied sub nom. Heft v. United States, 436 U.S. 911, 98 S.Ct. 2250, 56 L.Ed.2d 411 (1978); People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597 (1969). 34 In the present case, the Government contends that respondents' showing was insufficient on two grounds. First, the Government asserts that the threats and conditions cited by respondents as justifying their escape were not sufficiently immediate or serious to justify their departure from lawful custody. Second, the Government contends that, once the respondents had escaped, the coercive conditions in the jail were no longer a threat and respondents were under a duty to terminate their status as fugitives by turning themselves over to the authorities. 35 Respondents, on the other hand, argue that the evidence of coercion and conditions in the jail was at least sufficient to go to the jury as an affirmative defense to the crime charged. As for their failure to return to custody after gaining their freedom, respondents assert that this failure should be but one factor in the overall determination whether their initial departure was justified. According to respondents, their failure to surrender "may reflect adversely on the bona fides of [their] motivation" in leaving the jail, but should not withdraw the question of their motivation from the jury's consideration. Brief for Respondents 67. See also n. 3, supra. 36 We need not decide whether such evidence as that submitted by respondents was sufficient to raise a jury question as to their initial departures. This is because we decline to hold that respondents' failure to return is "just one factor" for the jury to weigh in deciding whether the initial escape could be affirmatively justified. On the contrary, several considerations lead us to conclude that, in order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure9 and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. 37 First, we think it clear beyond peradventure that escape from federal custody as defined in § 751(a) is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for his initial departure. Given the continuing threat to society posed by an escaped prisoner, "the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). Moreover, every federal court that has considered this issue has held, either explicitly or implicitly, that § 751(a) defines a continuing offense. See, e. g., United States v. Michelson, 559 F.2d 567 (CA9 1977); United States v. Cluck, 542 F.2d 728 (CA8), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 597 (1976); United States v. Joiner, 496 F.2d 1314 (CA5), cert. denied, 419 U.S. 1002, 95 S.Ct. 321, 42 L.Ed.2d 278 (1974); United States v. Chapman, 455 F.2d 746 (CA5 1972). 38 Respondents point out that Toussie calls for restraint in labeling crimes as continuing offenses. The justification for that restraint, however, is the tension between the doctrine of continuing offenses and the policy of repose embodied in statutes of limitations. See 397 U.S., at 114-115, 90 S.Ct., at 859-860. This tension is wholly absent where, as in the case of § 751(a), the statute of limitations is tolled for the period that the escapee remains at large.10 39 The remaining considerations leading to our conclusion are, perhaps ironically, derived from the same concern for the statutory and constitutional right of jury trial upon which the majority of the Court of Appeals based its reasoning. There was no significant "variance" in the indictment merely because respondents had not been indicted under a theory of escape as a continuing offense and because the District Court did not explain this theory to the juries. We have held on several occasions that "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S., at 117, 94 S.Ct., at 2907. These indictments, which track closely the language of § 751(a), were undoubtedly sufficient under this standard. See 418 U.S., at 87, 94 S.Ct., at 2892. As for the alleged failure of the District Court to elaborate for the benefit of the jury on the continuing nature of the charged offense, we believe that such elaboration was unnecessary where, as here, the evidence failed as a matter of law in a crucial particular to reach the minimum threshold that would have required an instruction on respondents' theory of the case generally. 40 The Anglo-Saxon tradition of criminal justice, embodied in the United States Constitution and in federal statutes, makes jurors the judges of the credibility of testimony offered by witnesses. It is for them, generally, and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story. An escapee who flees from a jail that is in the process of burning to the ground may well be entitled to an instruction on duress or necessity, " 'for he is not to be hanged because he would not stay to be burnt.' " United States v. Kirby, 7 Wall. 482, 487, 19 L.Ed. 278 (1869). And in the federal system it is the jury that is the judge of whether the prisoner's account of his reason for flight is true or false. But precisely because a defendant is entitled to have the credibility of his testimony, or that of witnesses called on his behalf, judged by the jury, it is essential that the testimony given or proffered meet a minimum standard as to each element of the defense so that, if a jury finds it to be true, it would support an affirmative defense—here that of duress or necessity. 41 We therefore hold that, where a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress or necessity, he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. We have reviewed the evidence examined elaborately in the majority and dissenting opinions below, and find the case not even close, even under respondents' versions of the facts, as to whether they either surrendered or offered to surrender at their earliest possible opportunity. Since we have determined that this is an indispensable element of the defense of duress or necessity, respondents were not entitled to any instruction on such a theory. Vague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense.11 III 42 In reversing the judgments of the Court of Appeals, we believe that we are at least as faithful as the majority of that court to its expressed policy of "allowing the jury to perform its accustomed role" as the arbiter of factual disputes. 190 U.S.App.D.C., at 151, 585 F.2d, at 1096. The requirement of a threshold showing on the part of those who assert an affirmative defense to a crime is by no means a derogation of the importance of the jury as a judge of credibility. Nor is it based on any distrust of the jury's ability to separate fact from fiction. On the contrary, it is a testament to the importance of trial by jury and the need to husband the resources necessary for that process by limiting evidence in a trial to that directed at the elements of the crime or at affirmative defenses. If, as we here hold, an affirmative defense consists of several elements and testimony supporting one element is insufficient to sustain it even if believed, the trial court and jury need not be burdened with testimony supporting other elements of the defense. 43 These cases present a good example of the potential for wasting valuable trial resources. In general, trials for violations of § 751(a) should be simple affairs. The key elements are capable of objective demonstration; the mens rea, as discussed above, will usually depend upon reasonable inferences from those objective facts. Here, however, the jury in the trial of Bailey, Cooley, and Walker heard five days of testimony. It was presented with evidence of every unpleasant aspect of prison life from the amount of garbage on the cellblock floor, to the meal schedule, to the number of times the inmates were allowed to shower. Unfortunately, all this evidence was presented in a case where the defense's reach hopelessly exceeded its grasp. Were we to hold, as respondents suggest, that the jury should be subjected to this potpourri even though a critical element of the proffered defenses was concededly absent, we undoubtedly would convert every trial under § 751(a) into a hearing on the current state of the federal penal system. 44 Because the juries below were properly instructed on the mens rea required by § 751(a), and because the respondents failed to introduce evidence sufficient to submit their defenses of duress and necessity to the juries, we reverse the judgments of the Court of Appeals. 45 Reversed. 46 Mr. Justice MARSHALL took no part in the consideration or decision of these cases. 47 Mr. Justice STEVENS, concurring. 48 The essential difference between the majority and the dissent is over the question whether the record contains enough evidence of a bona fide effort to surrender or return to custody to present a question of fact for the jury to resolve. On this issue, I agree with the Court that the evidence introduced by defendants Cooley, Bailey, and Cogdell was plainly insufficient. Vague references to anonymous intermediaries are so inherently incredible that a trial judge is entitled to ignore them. With respect to Walker, however, the question is much closer because he testified that he personally telephoned an FBI agent three times in an effort to negotiate a surrender.1 But since he remained at large for about two months after his last effort to speak with the FBI, I am persuaded that even under his version of the facts he did not make an adequate attempt to satisfy the return requirement. 49 The fact that I have joined the Court's opinion does not indicate that I—or indeed that any other Member of the majority—is unconcerned about prison conditions described by Mr. Justice BLACKMUN. Because we are construing the federal escape statute, however, I think it only fair to note that such conditions are more apt to prevail in state or county facilities than in federal facilities.2 Moreover, reasonable men may well differ about the most effective methods of redressing the situation. In my view, progress toward acceptable solutions involves formulating enforceable objective standards for civilized prison conditions,3 keeping the channels of communication between prisoners and the outside world open,4 and guaranteeing access to the courts,5 rather than relying on ad hoc judgments about the good faith of prison administrators,6 giving undue deference to their "expertise"7 or encouraging self-help by convicted felons.8 In short, neither my agreement with much of what Mr. Justice BLACKMUN has written, nor my disagreement with the Court about related issues, prevents me from joining its construction of the federal escape statute. 50 Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins, dissenting. 51 The Court's opinion, it seems to me, is an impeccable exercise in the undisputed general principles and technical legalism: The respondents were properly confined in the District of Columbia jail. They departed from that jail without authority or consent. They failed promptly to turn themselves in when, as the Court would assert by way of justification, ante, at 413, 415, the claimed duress or necessity "had lost its coercive force." Therefore, the Court concludes, there is no defense for a jury to weigh and consider against the respondents' prosecution for escape violative of 18 U.S.C. § 751(a). 52 It is with the Court's assertion that the claimed duress or necessity had lost its coercive force that I particularly disagree. The conditions that led to respondents' initial departure from the D.C. jail continue unabated. If departure was justified—and on the record before us that issue, I feel, is for the jury to resolve as a matter of fact in the light of the evidence, and not for this Court to determine as a matter of law—it seems too much to demand that respondents, in order to preserve their legal defenses, return forthwith to the hell that obviously exceeds the normal deprivations of prison life and that compelled their leaving in the first instance. The Court, however, requires that an escapee's action must amount to nothing more than a mere and temporary gesture that, it is to be hoped, just might attract attention in responsive circles. But life and health, even of convicts and accuseds, deserve better than that and are entitled to more than pious pronouncements fit for an ideal world. 53 The Court, in its carefully structured opinion, does reach a result that might be a proper one were we living in that ideal world, and were our American jails and penitentiaries truly places for humane and rehabilitative treatment of their inmates. Then the statutory crime of escape could not be excused by duress or necessity, by beatings, and by guard-set fires in the jails, for these would not take place, and escapees would be appropriately prosecuted and punished. 54 But we do not live in an ideal world "even" (to use a self-centered phrase) in America, so far as jail and prison conditions are concerned. The complaints that this Court, and every other American appellate court, receives almost daily from prisoners about conditions of incarceration, about filth, about homosexual rape, and about brutality are not always the mouthings of the purely malcontent. The Court itself acknowledges, ante, at 398, that the conditions these respondents complained about do exist. It is in the light of this stark truth, it seems to me, that these cases are to be evaluated. It must follow, then, that the jail-condition evidence proffered by respondent Cogdell should have been admitted, and that the jury before whom respondents Bailey, Cooley, and Walker were tried should not have been instructed to disregard the jail-condition evidence that did come in. I therefore dissent. 55 * The atrocities and inhuman conditions of prison life in America are almost unbelievable; surely they are nothing less than shocking. The dissent in the Bailey case in the Court of Appeals acknowledge that "the circumstances of prison life are such that at least a colorable, if not credible, claim of duress or necessity can be raised with respect to virtually every escape." 190 U.S.App.D.C. 142, 167, 585 F.2d 1087, 1112. And the Government concedes: "In light of prison conditions that even now prevail in the United States, it would be the rare inmate who could not convince himself that continued incarceration would be harmful to his health or safety." Brief for United States 27. See Furtado v. Bishop, 604 F.2d 80 (CA1 1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672. Cf. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). 56 A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail.1 Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system.2 Prison officials often are merely indifferent to serious health and safety needs of prisoners as well.3 57 Even more appalling is the fact that guards frequently participate in the brutalization of inmates.4 The classic example is the beating or other punishment in retaliation for prisoner complaints or court actions.5 58 The evidence submitted by respondents in these cases fits that pattern exactly. Respondent Bailey presented evidence that he was continually mistreated by correctional officers during his stay at the D.C. jail. He was threatened that his testimony in the Brad King case would bring on severe retribution. App. 142, 145. Other inmates were beaten by guards as a message to Bailey. Id., at 36. An inmate testified that on one occasion, three guards displaying a small knife told him that they were going "to get your buddy, that nigger Bailey. We're going to kill him." Id., at 94. The threats culminated in a series of violent attacks on Bailey. Blackjacks, mace, and slapjacks (leather with a steel insert) were used in beating Bailey. Id., at 94, 101, 146-150. 59 Respondent Cooley also elicited testimony from other inmates concerning beatings of Cooley by guards with slapjacks, blackjacks, and flashlights. Id., at 46-47, 97-98, 106, 116-118, 166-167, 185-186. There was evidence that guards threatened to kill Cooley. Id., at 107. 60 It is society's responsibility to protect the life and health of its prisoners. "[W]hen a sheriff or a marshall [sic ] takes a man from the courthouse in a prison van and transports him to confinement for two or three or ten years, this is our act. We have tolled the bell for him. And whether we like it or not, we have made him our collective responsibility. We are free to do something about him; he is not" (emphasis in original). Address by THE CHIEF JUSTICE, 25 Record of the Assn. of the Bar of the City of New York 14, 17 (Mar. 1970 Supp.). Deliberate indifference to serious and essential medical needs of prisoners constitutes "cruel and unusual" punishment violative of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). 61 "An inmate must rely on prison authorities to treat his medical needs. . . . In the worst cases, such a failure may actually produce physical 'torture or a lingering death'. . . . In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. . . . The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency." Id., at 103, 97 S.Ct., at 290. 62 It cannot be doubted that excessive or unprovoked violence and brutality inflicted by prison guards upon inmates violates the Eighth Amendment. See, e. g., Jackson v. Bishop, 404 F.2d 571 (CA8 1968). The reasons that support the Court's holding in Estelle v. Gamble lead me to conclude that failure to use reasonable measures to protect an inmate from violence inflicted by other inmates also constitutes cruel and unusual punishment. Homosexual rape or other violence serves no penological purpose. Such brutality is the equivalent of torture, and is offensive to any modern standard of human dignity. Prisoners must depend, and rightly so, upon the prison administrators for protection from abuse of this kind. 63 There can be little question that our prisons are badly overcrowded and understaffed and that this in large part is the cause of many of the shortcomings of our penal systems. This, however, does not excuse the failure to provide a place of confinement that meets minimal standards of safety and decency. 64 Penal systems in other parts of the world demonstrate that vast improvement surely is not beyond our reach. "The contrast between our indifference and the programs in some countries of Europe—Holland and the Scandinavian countries in particular—is not a happy one for us." Address by THE CHIEF JUSTICE, supra, at 20. "It has been many years since Swedish prisoners were concerned with such problems as 'adequate food, water, shelter'; 'true religious freedom'; and 'adequate medical treatment.' " Ward, Inmate Rights and Prison Reform in Sweden and Denmark, 63 J.Crim. L., C. & P. S. 240 (1972). See also Profile/Sweden, Corrections Magazine 11 (June 1977). Sweden's prisons are not overcrowded, and most inmates have a private cell. Salomon, Lessons from the Swedish Criminal Justice System: A Reappraisal, 40 Fed.Probation 40, 43 (Sept.1976). The prisons are small. The largest accommodate 300-500 inmates; most house 50-150. Id., at 43; Profile/Sweden, supra, at 14. "There appears to be a relaxed atmosphere between staff and inmates, and a prevailing attitude that prisoners must be treated with dignity and respect." Siegel, Criminal Justice—Swedish Style: A Humane Search for Answers, 1 Offender Rehabilitation 291, 292 (1977). II 65 The real question presented in this case is whether the prisoner should be punished for helping to extricate himself from a situation where society has abdicated completely its basic responsibility for providing an environment free of life-threatening conditions such as beatings, fires, lack of essential medical care, and sexual attacks. To be sure, Congress in so many words has not enacted specific statutory duress or necessity defenses that would excuse or justify commission of an otherwise unlawful act. The concept of such a defense, however, is "anciently woven into the fabric of our culture." J. Hall, General Principles of Criminal Law 416 (2d ed. 1960), quoted in Brief for United States 21. And the Government concedes that "it has always been an accepted part of our criminal justice system that punishment is inappropriate for crimes committed under duress because the defendant in such circumstances cannot fairly be blamed for his wrongful act." Id., at 23. 66 Although the Court declines to address the issue, it at least implies that it would recognize the common-law defenses of duress and necessity to the federal crime of prison escape, if the appropriate prerequisites for assertion of either defense were met. See ante, at 410-413. Given the universal acceptance of these defenses in the common law, I have no difficulty in concluding that Congress intended the defenses of duress and necessity to be available to persons accused of committing the federal crime of escape. 67 I agree with most of the Court's comments about the essential elements of the defenses. I, too, conclude that intolerable prison conditions are to be taken into account through affirmative defenses of duress and necessity, rather than by way of the theory of intent espoused by the Court of Appeals. That court's conclusion that intent to avoid the normal aspects of confinement is an essential element of the offense of escape means that the burden of proof is on the Government to prove that element. According to our precedents, e. g., Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Government would have to prove that intent beyond a reasonable doubt. It is unlikely that Congress intended to place this difficult burden on the prosecution. The legislative history is sparse, and does not specifically define the requisite intent. Circumstances that compel or coerce a person to commit an offense, however, traditionally have been treated as an affirmative defense, with the burden of proof on the defendant. Although intolerable prison conditions do not fit within the standard definition of a duress or necessity defense, see 190 U.S.App.D.C., at 151-152, n. 29, 585 F.2d, at 1096-1097, n. 29, they are analogous to these traditional defenses. I therefore agree that it is appropriate to treat unduly harsh prison conditions as an affirmative defense. 68 I also agree with the Court that the absence of reasonable less drastic alternatives is a prerequisite to successful assertion of a defense of necessity or duress to a charge of prison escape. One must appreciate, however, that other realistic avenues of redress seldom are open to the prisoner. Where prison officials participate in the maltreatment of an inmate, or purposefully ignore dangerous conditions or brutalities inflicted by other prisoners or guards, the inmate can do little to protect himself. Filing a complaint may well result in retribution, and appealing to the guards is a capital offense under the prisoners' code of behavior.6 In most instances, the question whether alternative remedies were thoroughly "exhausted" should be a matter for the jury to decide. 69 I, too, conclude that the jury generally should be instructed that, in order to prevail on a necessity or duress defense, the defendant must justify his continued absence from custody, as well as his initial departure. I agree with the Court that the very nature of escape makes it a continuing crime. But I cannot agree that the only way continued absence can be justified is by evidence "of a bona fide effort to surrender or return to custody." Ante, at 413, 415. The Court apparently entertains the view, naive in my estimation, that once the prisoner has escaped from a life- or health-threatening situation, he can turn himself in, secure in the faith that his escape somehow will result in improvement in those intolerable prison conditions. While it may be true in some rare circumstance that an escapee will obtain the aid of a court or of the prison administration once the escape is accomplished, the escapee, realistically, faces a high probability of being returned to the same prison and to exactly the same, or even greater, threats to life and safety. 70 The rationale of the necessity defense is a balancing of harms. If the harm caused by an escape is less than the harm caused by remaining in a threatening situation, the prisoner's initial departure is justified. The same rationale should apply to hesitancy and failure to return. A situation may well arise where the social balance weighs in favor of the prisoner even though he fails to return to custody. The escapee at least should be permitted to present to the jury the possibility that the harm that would result from a return to custody outweighs the harm to society from continued absence. 71 Even under the Court's own standard, the defendant in an escape prosecution should be permitted to submit evidence to the jury to demonstrate that surrender would result in his being placed again in a life- or health-threatening situation. The Court requires return to custody once the "claimed duress or necessity had lost its coercive force." Ante, at 413, 415. Realistically, however, the escapee who reasonably believes that surrender will result in return to what concededly is an intolerable prison situation remains subject to the same "coercive force" that prompted his escape in the first instance. It is ironic to say that that force is automatically "lost" once the prison wall is passed. 72 The Court's own phrasing of its test demonstrates that it is deciding factual questions that should be presented to the jury. It states that a "bona fide" effort to surrender must be proved. Ibid. Whether an effort is "bona fide" is a jury question. The Court also states that "[v]ague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense." Ante, at 415. Traditionally, it is the function of the jury to evaluate the credibility and meaning of "necessarily self-serving statements" and "ambiguous conduct." See People v. Luther, 394 Mich. 619, 232 N.W.2d 184 (1975); People v. Unger, 66 Ill.2d 333, 5 Ill.Dec. 848, 362 N.E.2d 319 (1977); Esquibel v. State, 91 N.M. 498, 576 P.2d 1129 (1978). 73 Finally, I of course must agree with the Court that use of the jury is to be reserved for the case in which there is sufficient evidence to support a verdict. I have no difficulty, however, in concluding that respondents here did indeed submit sufficient evidence to support a verdict of not guilty, if the jury were so inclined, based on the necessity defense. Respondent Bailey testified that he was in fear for his life, that he was afraid he would still face the same threats if he turned himself in, and that "[t]he FBI was telling my people that they was going to shoot me." App. 176.7 Respondent Cooley testified that he did not know anyone to call, and that he feared that the police would shoot him when they came to get him. Id., at 119.8 Respondent Walker testified that he had been in "constant rapport," id., at 195, with an FBI agent, who assured him that the FBI would not harm him, but who would not promise that he would not be returned to the D.C. jail. Id., at 200. Walker also stated that he had heard through his sister that the FBI "said that if they ran down on me they was going to kill me." Id., at 195.9 74 Perhaps it is highly unlikely that the jury would have believed respondents' stories that the FBI planned to shoot them on sight, or that respondent Walker had been in constant communication with an FBI agent. Nevertheless, such testimony, even though "self-serving," and possibly extreme and unwarranted in part, was sufficient to permit the jury to decide whether the failure to surrender immediately was justified or excused. This is routine grist for the jury mill and the jury usually is able to sort out the fabricated and the incredible. 75 In conclusion, my major point of disagreement with the Court is whether a defendant may get his duress or necessity defense to the jury when it is supported only by "self-serving" testimony and "ambiguous conduct." It is difficult to imagine any case, criminal or civil, in which the jury is asked to decide a factual question based on completely disinterested testimony and unambiguous actions. The very essence of a jury issue is a dispute over the credibility of testimony by interested witnesses and the meaning of ambiguous actions. 76 Ruling on a defense as a matter of law and preventing the jury from considering it should be a rare occurrence in criminal cases. "[I]n a criminal case the law assigns [the fact-finding function] solely to the jury." Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979). The jury is the conscience of society and its role in a criminal prosecution is particularly important. Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968). Yet the Court here appears to place an especially strict burden of proof on defendants attempting to establish an affirmative defense to the charged crime of escape. That action is unwarranted. If respondents' allegations are true, society is grossly at fault for permitting these conditions to persist at the D.C. jail. The findings of researchers and government agencies, as well as the litigated cases, indicate that in a general sense these allegations are credible.10 The case for recognizing the duress or necessity defenses is even more compelling when it is society, rather than private actors, that creates the coercive conditions. In such a situation it is especially appropriate that the jury be permitted to weigh all the factors and strike the balance between the interests of prisoners and that of society. In an attempt to conserve the jury for cases it considers truly worthy of that body, the Court has ousted the jury from a role it is particularly well suited to serve. 1 Title 18 U.S.C. § 751(a) provides: "Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge or magistrate, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both." Respondents were also charged with violating 22 D.C.Code § 2601 (1973), the District of Columbia's statute proscribing escape from prison. The District Court instructed the juries that if they found the respondents guilty of violating 18 U.S.C. § 751(a) they should not consider the charges under 22 D.C.Code § 2601. 2 On rebuttal, the prosecution called Joel Dean, the FBI agent who had been assigned to investigate Walker's escape in August 1976. He testified that, under standard Bureau practice, he would have been notified of any contact made by Walker with the FBI. According to Dean, he never was informed of any such contact. App. 203-204. 3 Respondents asked the District Court to give the following instruction: "Coercion which would excuse the commission of a criminal act must result from: "1) Threathening [sic ] conduct sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm; "2) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant; "3) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and "4) The defendant committed the act to avoid the threathened [sic ] harm." 4 This hierarchy does not attempt to cover those offenses where criminal liability is imposed in the absence of any mens rea whatsoever. Such "strict liability" crimes are exceptions to the general rule that criminal liability requires an "evil-meaning mind." Compare Morissette v. United States, 342 U.S. 246, 250-263, 72 S.Ct. 240, 243-250, 96 L.Ed. 288 (1952), with United States v. Dotterweich, 320 U.S. 277, 280-281, 284, 64 S.Ct. 134, 136-137, 138, 88 L.Ed. 48 (1943). Under the Model Penal Code, the only offenses based on strict liability are "violations," actions punishable by a fine, forfeiture, or other civil penalty rather than imprisonment. See Model Penal Code § 2.05(1)(a). See also LaFave & Scott 218-223. 5 Quoting id., at 196. 6 This omission does not mean, of course, that § 751(a) defines a "strict liability" crime for which punishment can be imposed without proof of any mens rea at all. As we held in Morissette v. United States, supra, 342 U.S., at 263, 72 S.Ct., at 250, "mere omission [from the statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced." See also United States v. United States Gypsum Co., 438 U.S. 422, 437, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978). 7 Under the Model Code, a defendant is guilty of escape if he acts even recklessly toward the material elements of the offense, since § 2.02(3) provides that, unless otherwise provided in the definition of the offense, an element of any offense "is established if a person acts purposely, knowingly or recklessly with respect thereto." S. 1, a proposed revision of the Federal Criminal Code, would have imposed liability on an escapee "if (1) he is reckless as to the fact that he is subject to official detention, that is, he is aware that he may be in official detention . . . but disregards the risk that he is in fact in official detention, and (2) knowingly leaves the detention area or breaks from custody." As noted earlier, we do not have to decide whether or under what circumstances an escapee can be held liable under § 751(a) if he acted only recklessly with respect to the material elements of the offense. See supra, at 407. 8 See also R. I. Recreation Center, Inc., v. Aetna Casualty & Surety Co., 177 F.2d 603, 605 (CA1 1949) (a person acting under a threat of death to his relatives was denied defense of duress where he committed the crime even though he had an opportunity to contact the police); People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597 (1969) (prisoner must resort to administrative or judicial channels to remedy coercive prison conditions); Model Penal Code § 2.09(1) (actor must succumb to a force or threat that "a person of reasonable firmness in his situation would have been unable to resist"); id., § 3.02(1) (actor must believe that commission of crime is "necessary" to avoid a greater harm); Working Papers 277 (duress excuses criminal conduct, "if at all, because given the circumstances other reasonable men must concede that they too would not have been able to act otherwise"). 9 We appreciate the fact that neither the prosecution nor the defense in a criminal case may put in all its evidence simultaneously, and to the extent that applicable rules of case law do not otherwise preclude such an approach, a district court is bound to find itself in situations where it admits evidence provisionally, subject to that evidence being later "tied in" or followed up by other evidence that makes the evidence conditionally admitted unconditionally admissible. In a civil action, the question whether a particular affirmative defense is sufficiently supported by testimony to go to the jury may often be resolved on a motion for summary judgment, but of course motions for summary judgment are creatures of civil, not criminal, trials. Thus, when we say that in order to have the theory of duress or necessity as a defense submitted to the jury an escapee must "first" offer evidence justifying his continuing absence from custody, we do not mean to impose a rigid mechanical formula on attorneys and district courts as to the order in which evidence supporting particular elements of a defense must be offered. The convenience of the jurors, the court, and the witnesses may all be best served by receiving the testimony "out of order" in certain circumstances, subject to an avowal by counsel that such testimony will later be "tied in" by testimony supporting the other necessary elements of a particular affirmative defense. Our holding here is a substantive one: an essential element of the defense of duress or necessity is evidence sufficient to support a finding of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity has lost its coercive force. As a general practice, trial courts will find it saves considerable time to require testimony on this element of the affirmative defense of duress or necessity first, simply because such testimony can be heard in a fairly short time, whereas testimony going to the other necessary elements of duress or necessity may take considerably longer to present. Here, for example, the jury heard five days of testimony as to prison conditions, when in fact the trial court concluded, correctly, that testimony as to another essential element of this defense did not even reach a minimum threshold such that if the jury believed it that element of defense could be said to have been made out. But trial judges presiding over indictments based on § 751(a) are in a far better position than are we to know whether, as a matter of the order of presenting witnesses and evidence, testimony from a particular witness may be allowed "out of order" subject to avowal, proffer, and the various other devices employed to avoid wasting the time of the court and jury with testimony that is irrelevant while at the same time avoiding if possible the necessity for recalling or seriously inconveniencing a witness. 10 Title 18 U.S.C. § 3290 provides that "[n]o statute of limitations shall extend to any person fleeing from justice." Because an escaped prisoner is, by definition, a fugitive from justice, the statute of limitations normally applicable to federal offenses would be tolled while he remained at large. See, e. g., Howgate v. United States, 7 App.D.C. 217 (1895). 11 Contrary to the implication of Mr. Justice BLACKMUN's dissent describing the rationale of the necessity defense as "a balancing of harms," post, at 427, we are construing an Act of Congress, not drafting it. The statute itself, as we have noted, requires no heightened mens rea that might be negated by any defense of duress or coercion. We nonetheless recognize that Congress in enacting criminal statutes legislates against a background of Anglo-Saxon common law, see Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), and that therefore a defense of duress or coercion may well have been contemplated by Congress when it enacted § 751(a). But since the express purpose of Congress in enacting that section was to punish escape from penal custody, we think that some duty to return, a duty described more elaborately in the text, must be an essential element of the defense unless the congressional judgment that escape from prison is a crime be rendered wholly nugatory. Our principal difference with the dissent, therefore, is not as to the existence of such a defense but as to the importance of surrender as an element of it. And we remain satisfied that, even if credited by the jury, the testimony set forth at length in Mr. Justice BLACKMUN's dissenting opinion could not support a finding that respondents had no alternatives but to remain at large until recaptured anywhere from one to three and one-half months after their escape. To hold otherwise would indeed quickly reduce the overcrowding in prisons that has been universally condemned by penologists. But that result would be accomplished in a manner quite at odds with the purpose of Congress when it made escape from prison a federal criminal offense. 1 The rebuttal testimony described by the Court, ante, at 399, n. 2, indicates that Walker was probably not telling the truth; but in deciding whether Walker's testimony was sufficient, I assume its veracity. 2 Compare, for example, Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522, with Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447. 3 See Estelle v. Gamble, 429 U.S. 97, 116-117, 97 S.Ct. 285, 297, 50 L.Ed.2d 251 (STEVENS, J., dissenting). 4 See Houchins v. KQED, Inc., 438 U.S. 1, 19, 98 S.Ct. 2588, 2599, 57 L.Ed.2d 553 (STEVENS, J., dissenting); Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 138, 97 S.Ct. 2532, 2544, 53 L.Ed.2d 629 (STEVENS, J., dissenting in part); Morales v. Schmidt, 489 F.2d 1335, 1344 (CA7 1973) (STEVENS, J., dissenting), modified, 494 F.2d 85, 87 (CA7 1974) (en banc) (STEVENS, J., concurring). 5 See, e. g., Harris v. Pate, 440 F.2d 315 (CA7 1971). Cf. Meachum v. Fano, 427 U.S. 215, 229, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (STEVENS, J., dissenting). 6 See, e. g., Procunier v. Navarette, 434 U.S. 555, 568, 98 S.Ct. 855, 863, 55 L.Ed.2d 24 (STEVENS, J., dissenting). 7 See Bell v. Wolfish, 441 U.S., at 584-585, 99 S.Ct., at 1897-1898 (STEVENS, J., dissenting). 8 It would be unwise, and perhaps counterproductive to immunize escapes that would otherwise be unlawful in the hope that they would motivate significant reforms. "An unselfish motive affords no assurance that a crime will produce the results its perpetrator intends." United States v. Cullen, 454 F.2d 386, 392, n. 17 (CA7 1971). Minimizing the risk of escape is, of course, the classic justification for imposing rigid discipline within prison walls. 1 See, e. g., C. Silberman, Criminal Violence, Criminal Justice 389 (1978); Report on Sexual Assaults in a Prison System and Sheriff's Vans, in 3 L. Radzinowicz & M. Wolfgang, eds., Crime and Justice 223-228 (2d ed. 1977). 2 See generally Silberman, supra, at 379-382, 386-392; C. Bartollas, S. Miller, & S. Dinitz, Juvenile Victimization—The Institutional Paradox (1976); C. Weiss & D. Friar, Terror in the Prisons (1974); O. Ballesteros, Behind Jail Bars 26-27 (1979); M. Luttrell, Behind Prison Walls 64-65 (1974). 3 E. g., Weiss & Friar, supra, at 183-184 (youth having epileptic seizure sprayed with tear gas, resulting in severe trauma); G. Mueller, Medical Services in Prison: Lessons from Two Surveys, in CIBA Foundation Symposium 16, Medical Care of Prisoners and Detainees 7, 11-16 (1973); J. Mitford, Kind & Usual Punishment 135 (1973); Univ. of Pa. Law School, Health Care and Conditions in Pennsylvania's State Prisons (1972), reprinted in ABA Comm'n on Correctional Facilities and Services, Standards and Materials on Medical and Health Care in Jails, Prisons, and Other Correctional Facilities 71 (1974); Report of the Medical Advisory Committee on State Prisons to Comm'r of Correction and Sec'y of Human Services, Commonwealth of Mass. (1971), reprinted in ABA Standards and Materials 89. 4 See e. g., Weiss & Friar, supra, at 54-60, 163-164, 176-181, 188, 199-200, 222. 5 See, e. g., Note, Escape From Cruel and Unusual Punishment: A Theory of Constitutional Necessity, 59 B.U.L.Rev. 334, 358-360 (1979); Landman v. Royster, 333 F.Supp. 621, 633-634 (ED Va.1971); Sostre v. Rockefeller, 312 F.Supp. 863, 869 (SDNY 1970), rev'd in part, modified in part, aff'd in part sub nom. Sostre v. McGinnis, 442 F.2d 178 (CA2 1971) (en banc), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972); Mitford, supra, at 260-262. 6 See, e. g., R. Goldfarb, Jails: The Ultimate Ghetto 325-326 (1975) (Official of Oklahoma Crime Commission describes gang rape and concludes: "[if the kid tells the guards] . . . his life isn't worth a nickel"); State v. Green, 470 S.W.2d 565, 569 (Mo.1971) (dissenting opinion), cert. denied, 405 U.S. 1073, 92 S.Ct. 1491, 31 L.Ed.2d 806 (1972). The alleged facts in this case appear to be typical. Respondent Bailey filed suit in the Superior Court of the District of Columbia to "stop the administrators from threatening my life." App. 176. Bailey testified that the suit caused the guards to threaten him in an attempt to persuade him to withdraw the action, to beat him, and to transfer him to the mental ward. Id., at 154-155. Bailey's suit subsequently was dismissed with prejudice. Brief for Respondents 15-16, n. 7. 7 "Q Why didn't you surrender yourself? "A I was in fear of my life. I know that if I turned myself in I would still be under the threats of death. Always knew that the FBI wanted to kill me, after I escaped, so I was in limbo. I didn't know what to do. I did have some people call to the officials at the jail on several occasions. "Q Let me ask you a question: You stated that you never surrendered yourself, because you were still fearful of the threats? "A That is right. "Q Did you understand where you would be returned to? "A Yes, sir. "Q Where? "A The new detention center, 1901 D Street, Southeast. "Q What section? "A Northeast 1. "Q Did you know who the guards would be? "A The same officers that was there before I left. "Q Did you ever hear that the FBI was looking for you? "A Yes, I did. "Q Didn't you feel that you could tell the FBI that you didn't want to return to the D. C. Jail in Northeast 1? "A No. The FBI was telling my people that they was going to shoot me." App. 175-176. 8 "Q Once you left the jail, Mr. Cooley, did you make any attempt to notify anybody in authority to say you were out and did you make any attempt to notify anybody that you were out? "A Yeah. "Q To whom? "A Like I ain't do it per se. But, like when I went home, you know, my people called and I told them that I had, I told them what happened. Why I had done it. They was mad. I told them why I had done it. They understood, but they called and never got in touch with anybody. "Q Did you ever make any attempt to call anybody, yourself? "A I don't know nobody to call. I'm thinking like this here: They don't like me in the jail. Ain't nobody I can call. "Q Why did not call anybody at the jail? "A For what? "Q Did you feel that there would be any purpose in doing that? "A It wouldn't have been none. They probably came and got me, and then make me try to run and they shoot me in half when they come and get me. "Q So you feared for your life. You could not call for that reason? "A That is right. "Q Did you ever leave Washington, D. C., after you left the jail? "A No." Id., at 119. 9 "The defendant Walker: "Now, there is one more issue that I want to briefly touch on here and that is the fact that after I was released from the detention facility I did in fact contact the proper authorities. I contacted the FBI on a number of occasions. As a matter of fact I kept a constant rapport with the FBI. I had people who had told me that they had brought this information to my sisters that the FBI said that if they ran down on me they was going to kill me. So, in actuality I was never out of immediate danger. I was never out of immediate threat of losing my life. If I would have given myself up I had this FBI threat to contend with and I also had to go back over to the same jail that I had just left from, and this was the reason that I consequently never turned myself into the authorities. That is my testimony. * * * * * "CROSS-EXAMINATION "Q Mr. Walker, do you know the names of the individuals in the FBI that you retained this constant rapport with during the course of your escape? "A One of them was an Officer Troy or Fauntroy, or something of that nature. I don't know if that is his exact name or not. "Q When did you call him, sir? "A I called him the second day after I was out, and after that I had occasion to call him on several different occasions. "Q Did you identify yourself at those times? "A Yes, I identified myself. "Q Did you indicate where you were? "A No, I didn't indicate where I was. "Q Did you tell him that you were going to surrender yourself? "A I told him that I would surrender myself if I wasn't being subjected to the same conditions and put on the same penitentiary that I had just left from. "Q How many days did you call this gentleman? "A I don't know. I called him two or three different times during the period that I was in the streets. "Q You were out until December 13th, is that correct? "A I think that is the date. * * * * * "Q Now, sir, where did you make the phone call from to the FBI? "A I made the first one from a public phone booth. "Q How did you know what number to call, sir? Did you look it up in the directory? "A I looked it up in the directory. "Q Did you ask for anybody in particular at the FBI? "A No, I just asked to speak to someone on the warrant squad or someone who was connected with escapees. "Q Would the name Fluharty, does that ring a bell? Would that name Fluharty ring a bell with you as the name of a gentleman you may have spoken to, if you spoke to someone? "A Sounds halfway familiar. "Q Exactly what did you tell him, sir? "A I explained to him that I was one of the four gentlemen that had escaped from the detention facility on August 26th, because of the conditions that existed there. "I explained to him how terminal the conditions were there and asked him was it any kind of way that I could get with him to make some type of arrangements as far as turning myself in, if I wouldn't have to go back to the detention facility at 1901 D Street, Southeast and also asked him had there been anything issued concerning, or had he told a man named Earl Berman, whether or not the FBI—or, did he have knowledge that anybody at the FBI had told Mr. Earl Berman that he had intended to kill me if I was arrested. "Q Who is Earl Berman, sir? "A Earl Berman is a personal friend of mine. "Q Are you saying that Mr. Berman told you that the FBI was going to kill you? "A Yes, he did. He didn't tell me but he told my sister and my sister related this information to me. "Q So, you heard it third-hand? "A Yes, I heard it second-hand. * * * * * "BY MR. SCHAARS: * * * * * "Q Now, sir, when exactly was the first time that you called Agent Fluharty or someone by the name of Fauntroy with the FBI? "A The second day I was out. "Q Would that be on the 28th, sir? "A That would be on the 28th. "Q Do you recall about what time of day it was, sir? "A I don't know. It was in the early morning hours. I would say have to be between 4:00 and 6:00. "Q A.M., sir? "A A.M. "Q And, do you know [how] long your conversation lasted at that point? "A It had—no longer than a three-minute duration at the most. "Q And you did identify yourself? "A I did identify myself. "Q When was the second time that you spoke to somebody from the FBI? "A Approximately a week and a half later. "Q Would it be fair to say that that would be about ten days later, sir? "A I think that would be fair. "Q To whom did you speak at that time? "A To the same person. "Q Did you ask for him at that time, sir or— "A Yes, I did. I had called the FBI building previous to that, told them that I was going to call. "Q Do you recall what time of day you called at that time, sir? "A It was about 2:00 in the afternoon. "Q How long did your conversation take at that time? "A No more than a three-minute duration then. "Q Did you identify yourself, sir? "A Yes, I identified myself. "Q At that time did you indicate to Agent Fluharty that you were going to turn yourself in? "A I indicated to him if he could work out the conditions for which I wanted to turn myself in, I would turn myself in. "Q What were the conditions? "A Those conditions would be the fact that I wouldn't be harmed by any agent of the FBI, I wouldn't be taken back to the detention facility, 1901 D Street, Southeast. "Q Did there come a time that you spoke to somebody from the FBI again? "A Yes, there did. "Q When was that, sir? "A I would say that would have been about a month later. "Q Would that be mid-October, sir, or late October or mid-November? I'm sorry, I don't mean to confuse you. "A It was in—it was in October. I don't know whether it was late or—It was around—it was in October, around, between the middle and first part of October. "Q Now, whom did you speak to at that time, sir? "A The same guy. "Q Agent Fluharty? "A I assume that is his name. "Q It was somebody on the warrant or escape squad that you were speaking to each time, sir? "A I assume that he was. "Q Did you ask specifically for somebody on that squad the first time you called? "A The first time I called I did. "Q And the second time, did you ask for the same agent by name? "A Yes, I did. "Q And the third time, did you ask for the same agent by name? "A Yes. "Q Now, sir, on that third occasion did you offer to come down and turn yourself in? "A Under certain specified conditions. "Q The same conditions as you have indicated on the two prior occasions? "A The very same conditions. "Q Now, sir, did there come a time when you called the FBI again? "A To my recollection, no. "Q So, from the beginning to the middle of October, whenever that third phone call occurred, to December 13th, you had no contact with the FBI? "A To my recollection, no. "Q Did you call any other law enforcement agency during that period of time, sir? "A No, I didn't. "Q Did you ever appear in any court of the District of Columbia to turn yourself in during that period of time? "A No, I didn't. "Q Did you ever talk to a minister or a priest or any kind of religious leader in an effort to turn yourself in during that period of time? "A Yes, I did. I'm a minister myself. "Q You are, sir? Did you speak to another member of your faith, a minister? "A Yes, I did. "Q To whom did you speak, sir? "A I don't want to give his name at this time. I don't want to incriminate him as far as anything, as far as my escape and everything is concerned. You'd have him up here for a charge. "Q Did you tell that gentleman that you were going to turn yourself in? "A I told him—I had discussed turning myself in with a member of the FBI and I thought very seriously about it, if the conditions that I had specified to you could be worked out. "Q When you spoke to this gentleman from the FBI, did he ever indicate that he would agree to those conditions? "A No, he didn't. "Q Did he indicate that he would agree with anything? "A He indicated that he would agree that I wouldn't be harmed by any members of the Federal Bureau of Investigation, but that he couldn't agree that I wouldn't be taken back to the detention facility, 1901 D Street. "Q So, he did promise you that the FBI wasn't going to hurt you? "A Yes, he told me that the FBI wouldn't hurt me. "Q Did you have any contact with a warrant squad officer of the District of Columbia Department of Corrections during your period of elopment [sic ]? "A Not to my recollection, unless he is part of that warrant squad." App. 195-200. 10 In addition to the sources cited above, see American Assembly, Prisoners in America (1973); S. Sheehan, A Prison and a Prisoner (1978); V. Williams & M. Fish, Convicts, Codes, and Contraband (1974); Inside—Prison American Style (R. Minton, ed. 1971); T. Murton, The Dilemma of Prison Reform (1976); American Friends Service Committee, Struggle for Justice, A Report on Crime and Punishment in America (1971); Behind Bars: Prisoners in America (R. Kwartler, ed. 1977); B. Bagdikian & L. Dash, The Shame of the Prisons (1972); Note, 13 Ga.L.Rev. 300 (1978); Note, Intolerable Conditions as a Defense to Prison Escapes, 26 U.C.L.A.L.Rev. 1126 (1979); Comment, 127 U.Pa.L.Rev. 1142 (1979); Note, 54 Chi.-Kent L.Rev. 913 (1978); Comment, 26 Buffalo L.Rev. 413 (1977); Plotkin, Surviving Justice: Prisoners' Rights To Be Free from Physical Assault, 23 Cleve.St.L.Rev. 387 (1974); Note, 45 S.Cal.L.Rev. 1062 (1972); Note, 36 Albany L.Rev. 428 (1972).

01

444 U.S. 335 100 S.Ct. 588 62 L.Ed.2d 530 State of OHIO, Plaintiff,v.Commonwealth of KENTUCKY. No. 27, Orig. Argued Dec. 3, 1979. Decided Jan. 21, 1980. Rehearing Denied March 17, 1980. See 445 U.S. 939, 100 S.Ct. 1307. Syllabus Held: The boundary between Ohio and Kentucky is the low-water mark on the northerly side of the Ohio River as it existed in 1792 when Kentucky was admitted to the Union, not the current low-water mark on the northerly side of the river. Historical factors establish that the boundary is not the Ohio River just as a boundary river, but is the northerly edge. Thus, the accepted rules of accretion and avulsion attendant upon a wandering river that are applicable in customary situations involving river boundaries between States, do not apply here. Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329, controls this case. Pp. 337-341. Exceptions to Special Master's report overruled, report adopted, and case remanded. James M. Ringo, Asst. Atty. Gen., Lexington, Ky., for defendant the State of Ky. Michael R. Szolosi, Columbus, Ohio, for plaintiff the State of Ohio. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 The State of Ohio, in 1966, instituted this action, under the Court's original jurisdiction, against the Commonwealth of Kentucky. By its bill of complaint as initially filed, Ohio asked that the Court declare and establish that the boundary line between the two States is "the low water mark on the northerly side of the Ohio River in the year 1792." Leave to file the bill of complaint was granted. 384 U.S. 982, 86 S.Ct. 1883, 16 L.Ed.2d 1002 (1966). In due course, Kentucky filed its answer and a Special Master was appointed. 385 U.S. 803, 87 S.Ct. 29, 17 L.Ed.2d 49 (1966). In its answer, Kentucky alleged that the boundary line is the current low-water mark on the northerly side of the Ohio River. 2 Ohio later moved for leave to file an amended complaint that would assert, primarily, that the boundary between Ohio and Kentucky is the middle of the Ohio River, and, only alternatively, is the 1792 low-water mark on the northerly shore. That motion was referred to the Special Master. 404 U.S. 933, 92 S.Ct. 266, 30 L.Ed.2d 246 (1971). The Special Master held a hearing and in due course filed his report recommending that Ohio's petition for leave to amend be denied. 406 U.S. 915, 92 S.Ct. 1762, 32 L.Ed.2d 114 (1972). Upon the filing of Ohio's exceptions and Kentucky's reply, the matter was set for hearing. 409 U.S. 974, 93 S.Ct. 303, 34 L.Ed.2d 238 (1972). After argument, the Special Master's recommendation was adopted, Ohio's motion for leave to amend was denied, and the case was remanded. 410 U.S. 641, 93 S.Ct. 1178, 35 L.Ed.2d 560 (1973). 3 The Honorable Robert Van Pelt, who by then had been appointed Special Master following the resignation of his predecessor, thereafter filed his report on the case as shaped by the original pleadings. That report was received and ordered filed. 439 U.S. 1123, 99 S.Ct. 1037, 59 L.Ed.2d 85 (1979). Kentucky lodged exceptions to the report, and Ohio filed its reply. Oral argument followed. 4 The Special Master recommends that this Court determine that the boundary between Ohio and Kentucky "is the low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; that the boundary "is not the low-water mark on the northerly side of the Ohio River as it exists today"; and that such boundary, "as nearly as it can now be ascertained, be determined either a) by agreement of the parties, if reasonably possible, or b) by joint survey agreed upon by the parties," or, in the absence of such an agreement or survey, after hearings conducted by the Special Master and the submission by him to this Court of proposed findings and conclusions. Report of Special Master 16. 5 We agree with the Special Master. Much of the history concerning Virginia's cession to the United States of lands "northwest of the river Ohio" was reviewed and set forth in the Court's opinion concerning Ohio's motion for leave to amend its 1966 complaint. 410 U.S., at 645-648, 93 S.Ct., at 1181-1182. Upon the denial of Ohio's motion, the case was left in the posture that the boundary between the two States was the river's northerly low-water mark. The litigation, thus, presently centers on where that northerly low-water mark is—is it the mark of 1792 when Kentucky was admitted to the Union, ch. IV, 1 Stat. 189, or is it a still more northerly mark due to the later damming of the river and the consequent rise of its waters? 6 It should be clear that the Ohio River between Kentucky and Ohio, or, indeed, between Kentucky and Indiana, is not the usual river boundary between States. It is not like the Missouri River between Iowa and Nebraska, see, e. g., Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892), or the Mississippi River between Arkansas and Mississippi. See Mississippi v. Arkansas, 415 U.S. 289, 94 S.Ct. 1046, 39 L.Ed.2d 333 (1974), and 415 U.S. 302, 94 S.Ct. 1052, 39 L.Ed.2d 342 (1974). See also Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55 (1893); Missouri v. Nebraska, 196 U.S. 23, 25 S.Ct. 155, 49 L.Ed. 372 (1904); Minnesota v. Wisconsin, 252 U.S. 273, 40 S.Ct. 313, 64 L.Ed. 558 (1920); New Jersey v. Delaware, 291 U.S. 361, 54 S.Ct. 407, 78 L.Ed. 847 (1934); Arkansas v. Tennessee, 310 U.S. 563, 60 S.Ct. 1026, 84 L.Ed. 1362 (1940). In these customary situations the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river have full application. 7 A river boundary situation, however, depending upon historical factors, may well differ from that customary situation. See, for example, Texas v. Louisiana, 410 U.S. 702, 93 S.Ct. 1215, 35 L.Ed.2d 646 (1973), where the Court was concerned with the Sabine River, Lake, and Pass. And in the Kentucky-Ohio and Kentucky-Indiana boundary situation, it is indeed different. Here the boundary is not the Ohio River just as a boundary river, but is the northerly edge, with originally Virginia and later Kentucky entitled to the river's expanse. This is consistently borne out by, among other documents, the 1781 Resolution of Virginia's General Assembly for the cession to the United States ("the lands northwest of the river Ohio"), 10 W. Hening, Laws of Virginia 564 (1822); the Virginia Act of 1783 ("the territory . . . to the north-west of the river Ohio"), 11 W. Hening, Laws of Virginia 326, 327 (1823); and the deed from Virginia to the United States ("the territory . . . to the northwest of the river Ohio") accepted by the Continental Congress on March 1, 1784, 1 Laws of the United States 472, 474 (B. & D. ed. 1815). The Court acknowledged this through Mr. Chief Justice Marshall's familiar pronouncement with respect to the Ohio River in Handly's Lessee v. Anthony, 5 Wheat. 374, 379, 5 L.Ed. 113 (1820): 8 "When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only. The river, however, is its boundary." 9 The dissent concedes as much. Post, at 342. The dissent then, however, would be persuaded by whatever is "the current low-water mark on the northern shore." Post, at 343. But it is far too late in the day to equate the Ohio with the Missouri, with the Mississippi, or with any other boundary river that does not have the historical antecedents possessed by the Ohio, antecedents that fix the boundary not as the river itself, but as its northerly bank. Handly's Lessee, in our view, supports Ohio's position, not the dissent's. If there could be any doubt about this, it surely was dispelled completely when the Court decided Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329 (1890). There Mr. Justice Field, speaking for a unanimous Court, said: 10 "[Kentucky] succeeded to the ancient right and possession of Virginia, and they could not be affected by any subsequent change of the Ohio River, or by the fact that the channel in which that river once ran is now filled up, from a variety of causes, natural and artificial, so that parties can pass on dry land from the tract in controversy to the State of Indiana. Its water might so depart from its ancient channel as to leave on the opposite side of the river entire counties of Kentucky, and the principle upon which her jurisdiction would then be determined is precisely that which must control in this case. Missouri v. Kentucky, 11 Wall. 395, 401. Her dominion and jurisdiction continue as they existed at the time she was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river. 11 * * * * * 12 "Our conclusion is, that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as 'Green River Island', and that the jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel; and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filled." Id., at 508, 518-519, 10 S.Ct., at 1053, 1057. 13 The fact that Indiana v. Kentucky concerned a portion of the Ohio River in its Indiana-Kentucky segment, rather than a portion in its Ohio-Kentucky segment, is of no possible legal consequence; the applicable principles are the same, and the holding in Indiana v. Kentucky has pertinent application and is controlling precedent here. The Court's flat pronouncements in Indiana v. Kentucky are not to be rationalized away so readily as the dissent, post, at 343-519, would have them cast aside. Kentucky's present contentions, and those of the dissent, were rejected by this Court 90 years ago. 14 We are not disturbed by the fact that boundary matters between Ohio and Kentucky by the Court's holding today will turn on the 1792 low-water mark of the river. Locating that line, of course, may be difficult, and utilization of a current, and changing, mark might well be more convenient. But knowledgeable surveyors, as the Special Master's report intimates, have the ability to perform this task. Like difficulties have not dissuaded the Court from concluding that locations specified many decades ago are proper and definitive boundaries. See, e. g., Utah v. United States, 420 U.S. 304, 95 S.Ct. 1153, 43 L.Ed.2d 211 (1975), and 427 U.S. 461, 96 S.Ct. 3187, 49 L.Ed.2d 625 (1976); New Hampshire v. Maine, 426 U.S. 363, 96 S.Ct. 2113, 48 L.Ed.2d 701 (1976), and 434 U.S. 1, 98 S.Ct. 42, 54 L.Ed.2d 1 (1977). The dissent's concern about the possibility, surely extremely remote, that the comparatively stable Ohio River might "pass completely out of Kentucky's borders," post, at 343, is of little weight. Situations where land of one State comes to be on the "wrong" side of its boundary river are not uncommon. See Wilson v. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979); Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 369, n.5, 98 S.Ct. 2396, 2400, n.5, 57 L.Ed.2d 274 (1978); Missouri v. Nebraska, 196 U.S. 23, 25 S.Ct. 155, 49 L.Ed. 372 (1904). 15 Finally, it is of no little interest that Kentucky sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary. Informational Bulletin No. 93 (1972), issued by the Legislative Research Commission of the Kentucky General Assembly, states: 16 "Kentucky's North and West boundary, to-wit, the low water mark on the North shore of the Ohio River as of 1792, has been recognized as the boundary based upon the fact that Kentucky was created from what was then Virginia." Id., at 3. 17 See also the opinion of the Attorney General of Kentucky, OAG 63-847, contained in Kentucky Attorney General Opinions 1960-1964. See also Perks v. McCracken, 169 Ky. 590, 184 S.W. 891 (1916), where the court stated that the question in the case was "where was the low water mark at the time Kentucky became a State." 18 The exceptions of the Commonwealth of Kentucky to the report of the Special Master are overruled. The report is hereby adopted, and the case is remanded to the Special Master so that with the cooperation of the parties he may prepare and submit to the Court an appropriate form of decree. 19 Mr. Justice POWELL, with whom Mr. Justice WHITE and Mr. Justice REHNQUIST join, dissenting. 20 The Court today holds that the present boundary between Ohio and Kentucky is the low-water mark of the northern shore of the Ohio River when Kentucky was admitted to the Union in 1792. This curious result frustrates the terms of the Virginia Cession of 1784 that first established the Ohio-Kentucky border, ignores Mr. Chief Justice Marshall's construction of that grant in Handly's Lessee v. Anthony, 5 Wheat. 374, 5 L.Ed. 113 (1820), is contrary to common-law rules of riparian boundaries, and creates a largely unidentifiable border. Accordingly, I dissent. 21 * In 1784, the Commonwealth of Virginia ceded to the United States all of its territory "to the northwest of the river Ohio." 1 Laws of the United States 472, 474 (B. & D. ed. 1815). As this Court recently observed, the border question " 'depends chiefly on the land law of Virginia, and on the cession made by that State to the United States.' " Ohio v. Kentucky, 410 U.S. 641, 645, 93 S.Ct. 1178, 1181, 35 L.Ed.2d 560 (1973), quoting Handly's Lessee v. Anthony, supra, 5 Wheat., at 376. The 1784 Cession was construed definitively in Handly's Lessee, a case involving a dispute over land that was connected to Indiana when the Ohio River was low, but which was separated from Indiana when the water was high. The Court held that since the 1784 Cession required that the river remain within Kentucky, the proper border was the low-water mark on the northern or northwestern shore. Consequently, the land in issue belonged to Indiana. 22 Mr. Chief Justice Marshall, writing for the Court, pointed out that Virginia originally held the land that became both Indiana and Kentucky. Under the terms of the Virginia Cession, he stated: "These States, then, are to have the [Ohio] river itself, wherever that may be, for their boundary." 5 Wheat., at 379 (emphasis supplied). The Chief Justice found support for that conclusion in the original Cession: 23 "[W]hen, as in this case, one State [Virginia] is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State [Indiana] extends to the river only. The river, however, is its boundary." Ibid. 24 Such a riparian border, the Chief Justice emphasized, cannot be stationary over time. He wrote: "Any gradual accretion of land, then, on the Indiana side of the Ohio, would belong to Indiana. . . . " Id., at 380. This rule avoids the "inconvenience" of having a strip of land belonging to one State between another State and the river. 25 "Wherever the river is a boundary between States, it is the main, the permanent river, which constitutes that boundary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low water mark." Id., at 380-381. 26 Because the boundary between Ohio and Kentucky was established by the same events that drew the line between Indiana and Kentucky, the holding in Handly's Lessee should control this case.1 The Ohio River must remain the border between the States and within the domain of Kentucky. The only way to ensure this result is to recognize the current low-water mark on the northern shore as the boundary. 27 The approach taken by the Court today defeats the express terms of the Virginia Cession and ignores the explicit language of Mr. Chief Justice Marshall in Handly's Lessee.2 The Court's holding that the boundary forever remains where the low-water mark on the northern shore of the river was in 1792, regardless of the river's movements over time, may produce bizarre results. If erosion and accretion were to shift the river to the north of the 1792 low-water mark, today's ruling would place the river entirely within the State of Ohio. The river would thus pass completely out of Kentucky's borders despite the holding in Handly's Lessee that the Ohio "[R]iver itself, wherever that may be, [is the] boundary." Id., at 379. The river would not be the boundary between the two States nor would Kentucky as successor to Virginia "retai[n] the river within its own domain" as Mr. Chief Justice Marshall declared that it must. Ibid. Similarly, if the river were to move to the south of the 1792 line, Ohio would be denied a shore on the river. Sensible people could not have intended such results, which not only would violate the plain language of the 1784 Cession, but also would mock the congressional resolution accepting Ohio into the Union as a State "bounded . . . on the South by the Ohio [R]iver." Ch. XL, 2 Stat. 173. II 28 The Court, like the Special Master, disregards the teaching of Handly's Lessee. Instead, the Court relies heavily on the decision in Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329 (1890), where Mr. Justice Field wrote that with respect to Kentucky's northern border, the State's "dominion and jurisdiction continue as they existed at the time she was admitted into the Union [1792], unaffected by the action of the forces of nature upon the course of the river." Id., at 508, 10 S.Ct., at 1053; ante, at 330. Kentucky argues, with some force, that the Court in 1890 found no change from the 1792 boundary because that case concerned the abandonment of a channel by the river, the sort of avulsive change in course that ordinarily does not alter riparian boundaries. There is no sign of an avulsive change in the length of the Ohio River at issue in this case. Moreover, Indiana v. Kentucky went on to find that Indiana had acquiesced in Kentucky's prescription of the land at issue. There has been no showing before us that Kentucky has acquiesced to Ohio's claim that the 1792 low-water mark establishes the entire boundary between the two States. See n. 3, infra. Absent such a showing, I do not believe the holding in Indiana v. Kentucky should be applied here. 29 In any event, the force of Mr. Justice Field's opinion as a precedent may be questioned on its face. The decision cannot be reconciled with Handly's Lessee or with any normal or practical construction of Virginia's Cession in 1784. Indeed, the Court's opinion is essentially devoid of reasoning. After reproducing the passages in Handly's Lessee that establish that Kentucky must retain jurisdiction over the river, Mr. Justice Field states abruptly that, nevertheless, the boundary should be set at the low-water mark "when Kentucky became a State." 136 U.S., at 508, 10 S.Ct., at 1053. Mr. Justice Field apparently was unaware that, in effect, he was overruling the case on which he purported to rely. His conclusion is based simply on the startling view that when Kentucky "succeeded to the ancient right and possession of Virginia" in 1792, the new State received a boundary that "could not be affected by any subsequent change of the Ohio River." Ibid. The opinion offers no further explanation for its holding. 30 Of course, Kentucky did succeed to Virginia's rights in 1792. After the Cession of 1784, Virginia was entitled to have the river within its jurisdiction and to have the northern low-water mark as the boundary between it and that part of the Northwest Territory that became Ohio and Indiana. Kentucky's entry into the Union could not, without more, replace those rights with the immutable boundary found by Mr. Justice Field. Neither Mr. Justice Field in 1890 nor the State of Ohio in this litigation pointed to any suggestion by Congress in 1792 that it intended such a result. III 31 Today's decision also contravenes the common law of riparian boundaries. In a dispute over the line between Arkansas and Tennessee along the Mississippi River, this Court noted: 32 "[W]here running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream." Arkansas v. Tennessee, 246 U.S. 158, 173, 38 S.Ct. 301, 304, 62 L.Ed. 638 (1918). 33 See Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973). This rule has an intensely practical basis, since it is exceedingly difficult to establish where a river flowed many years ago. Physical evidence of the river's path is almost certain to wash away over time, and documentary evidence either may not survive or may not be reliable. 34 The Court suggests that the Ohio-Kentucky boundary should not be determined by reference to previous river boundary decisions because the border in this case is not " 'the river itself, but . . . its northerly bank." Ante, at 338. This contention contradicts Mr. Chief Justice Marshall's statement, quoted by the Court, that with respect to Kentucky's northern border, "[t]he river, however, is its boundary.' " Ibid. In addition, the Court does not explain why established principles of riparian law are inapplicable simply because the northern low-water mark, not the center of the river, is the boundary. Since both lines shift over time, it is only sensible to adopt the common-law view that borders defined by those lines will move with them.3 IV 35 Following today's decision, all boundary matters between Ohio and Kentucky will turn on the location almost 200 years ago of the northern low-water mark of the Ohio River. This cumbersome and uncertain outcome might be justified if it were dictated by unambiguous language in the Virginia Cession. But since the Court's decision is not only unworkable but also does violence to that deed as it has been construed by this Court, I cannot agree with its ruling today. 1 Both parties to this litigation agree that the boundary between Kentucky and Ohio is controlled by the same legal and historical considerations that define the boundary between Indiana and Kentucky. 2 Mr. Chief Justice Marshall, the author of Handly's Lessee, would seem a particularly reliable interpreter of the 1784 Cession. The Chief Justice was not only a practicing lawyer in Richmond in 1783 and 1784, but also served as a member of the General Assembly of Virginia that approved the Cession. 1 A. Beveridge, The Life of John Marshall 202-241 (1919). 3 The Court seeks support for today's decision from a recent statement by the Legislative Research Committee of the Kentucky General Assembly and a 1963 opinion of the Kentucky Attorney General. Ante, at 340. Although both documents refer to the 1792 low-water mark as the proper boundary, they are hardly authoritative pronouncements that should control our outcome. Indeed, other legislative and judicial statements refer to the northern low-water mark without any mention of the 1792 line. See 57 Stat. 248 (interstate Compact between Indiana and Kentucky defining the boundary as the "low-water mark of the right side of the Ohio river"); Commonwealth v. Henderson County, 371 S.W.2d 27, 29 (Ky.App.1963) (Kentucky's boundary is "north or northwest low watermark of the Ohio River"); Louisville Sand & Gravel Co. v. Ralston, 266 S.W.2d 119, 121 (Ky.App.1954) (" 'our state boundary is along the north bank of the Ohio river at low-water mark,' " quoting Willis v. Boyd, 224 Ky. 732, 735, 7 S.W.2d 216, 218 (1928)). Under the doctrine of prescription and acquiescence, it may be proved that one party has recognized through its actions a riparian boundary claimed by another party. See Michigan v. Wisconsin, 270 U.S. 295, 308, 46 S.Ct. 290, 294, 70 L.Ed. 595 (1926). That question, however, is one of fact. The Special Master did not request evidence from the parties on this issue, so it is not properly before us now. We cannot decide such a question on the basis of particular shards of evidence that may come to our attention. In view of the conflicting evidence on the claim of prescription and acquiescence, the correct course would be to return this litigation to the Special Master for findings of fact on that question.

1011

444 U.S. 490 100 S.Ct. 755 62 L.Ed.2d 689 NORFOLK AND WESTERN RAILWAY COMPANY, Petitioner,v.Kandythe J. LIEPELT, Administratrix, etc. No. 78-1323. Argued Nov. 5, 1979. Decided Feb. 19, 1980. Rehearing Denied April 14, 1980. See 445 U.S. 972, 100 S.Ct. 1667. Syllabus Held: In a wrongful-death action brought under the Federal Employers' Liability Act (FELA) in an Illinois court, the trial court erred in excluding evidence offered by petitioner-defendant to show the effect of income taxes on the decedent's estimated future earnings, and in refusing petitioner's requested jury instruction that "your award will not be subject to any income taxes, and you should not consider such taxes in fixing the amount of your award." Pp. 757-760. 62 Ill.App.3d 653, 19 Ill.Dec. 357, 378 N.E.2d 1232, reversed and remanded. Howard J. Trienens, Chicago, Ill., for petitioner. Richard S. Fleisher, Chicago, Ill., for respondent. Mr. Justice STEVENS delivered the opinion of the Court. 1 In cases arising under the Federal Employers' Liability Act,1 most trial judges refuse to allow the jury to receive evidence or instruction concerning the impact of federal income taxes on the amount of damages to be awarded. Because the prevailing practice developed at a time when federal taxes were relatively insignificant, and because some courts are now following a different practice, we decided to answer the two questions presented by the certiorari petition in this wrongful-death action: (1) whether it was error to exclude evidence of the income taxes payable on the decedent's past and estimated future earnings; and (2) whether it was error for the trial judge to refuse to instruct the jury that the award of damages would not be subject to income taxation. 2 In 1973, a fireman employed by petitioner suffered fatal injuries in a collision caused by petitioner's negligence.2 Respondent, as administratrix of the fireman's estate, brought suit under the FELA to recover the damages that his survivors suffered as a result of his death. In 1976, after a full trial in the Circuit Court of Cook County, the jury awarded respondent $775,000. On appeal, the Appellate Court of Illinois held that it was "not error to refuse to instruct a jury as to the nontaxability of an award" and also that it "[was] not error to exclude evidence of the effect of income taxes on future earnings of the decedent." 62 Ill.App.3d 653, 669, 19 Ill.Dec., at 370, 378 N.E.2d 1232, 1245 (1978). The Illinois Supreme Court denied leave to appeal.3 3 The evidence supporting the damages award included biographical data about the decedent and his family and the expert testimony of an economist. The decedent, a 37-year-old man, was living with his second wife and two young children and was contributing to the support of two older children by his first marriage. His gross earnings in the 11 months prior to his death on November 22, 1973, amounted to $11,988. Assuming continued employment, those earnings would have amounted to $16,828.26 in 1977. 4 The expert estimated that the decedent's earnings would have increased at a rate of approximately five percent per year, which would have amounted to $51,600 in the year 2000, the year of his expected retirement. The gross amount of those earnings, plus the value of the services he would have performed for his family, less the amounts the decedent would have spent upon himself, produced a total which, when discounted to present value at the time of trial, amounted to $302,000. 5 Petitioner objected to the use of gross earnings, without any deduction for income taxes, in respondent's expert's testimony and offered to prove through the testimony of its own expert, an actuary, that decedent's federal income taxes during the years 1973 through 2000 would have amounted to about $57,000. Taking that figure into account, and making different assumptions about the rate of future increases in salary and the calculation of the present value of future earnings, petitioner's expert computed the net pecuniary loss at $138,327. As already noted, the jury returned a verdict of $775,000. 6 Petitioner argues that the jury must have assumed that its award was subject to federal income taxation; otherwise, it is argued, the verdict would not have exceeded respondent's expert's opinion by such a large amount.4 For that reason, petitioner contends that it was prejudiced by the trial judge's refusal to instruct the jury that "your award will not be subject to any income taxes, and you should not consider such taxes in fixing the amount of your award." 7 Whether it was error to refuse that instruction, as well as the question whether evidence concerning the federal taxes on the decedent's earnings was properly excluded, is a matter governed by federal law. It has long been settled that questions concerning the measure of damages in an FELA action are federal in character. See, e. g., Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417. This is true even if the action is brought in state court. See, e. g., Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117.5 In this case the Appellate Court of Illinois recognized that the practice then being followed in Illinois was subject to change when this Court addresses the issue.6 We do so now, first considering the evidence question and then the proposed instruction. 8 * In a wrongful-death action under the FELA, the measure of recovery is "the damages . . . [that] flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received . . . " Michigan Central R. Co. v. Vreeland, supra, 227 U.S., at 70, 33 S.Ct., at 196. The amount of money that a wage earner is able to contribute to the support of his family is unquestionably affected by the amount of the tax he must pay to the Federal Government. It is his after-tax income, rather than his gross income before taxes, that provides the only realistic measure of his ability to support his family. It follows inexorably that the wage earner's income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies. 9 Although federal courts have consistently received evidence of the amount of the decedent's personal expenditures, see, e. g., Kansas City S. R. Co. v. Leslie, 238 U.S. 599, 604, 35 S.Ct. 844, 846, 59 L.Ed. 1478 and have required that the estimate of future earnings be reduced by "taking account of the earning power of the money that is presently to be awarded," Chesapeake & Ohio R. Co. v. Kelly, supra, 241 U.S., at 489, 36 S.Ct., at 632, they have generally not considered the payment of income taxes as tantamount to a personal expenditure and have regarded the future prediction of tax consequences as too speculative and complex for a jury's deliberations. See, e. g., Johnson v. Penrod Drilling Co., 510 F.2d 234, 236-237 (CA5 1975), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58. 10 Admittedly there are many variables that may affect the amount of a wage earner's future income-tax liability. The law may change, his family may increase or decrease in size, his spouse's earnings may affect his tax bracket, and extra income or unforeseen deductions may become available. But future employment itself, future health, future personal expenditures, future interest rates, and future inflation are also matters of estimate and prediction. Any one of these issues might provide the basis for protracted expert testimony and debate. But the practical wisdom of the trial bar and the trial bench has developed effective methods of presenting the essential elements of an expert calculation in a form that is understandable by juries that are increasingly familiar with the complexities of modern life. We therefore reject the notion that the introduction of evidence describing a decedent's estimated after-tax earnings is too speculative or complex for a jury.7 11 Respondent argues that if this door is opened, other equally relevant evidence must also be received. For example, she points out that in discounting the estimate of future earnings to its present value, the tax on the income to be earned by the damages award is now omitted.8 Logically, it would certainly seem correct that this amount, like future wages, should be estimated on an after-tax basis. But the fact that such an after-tax estimate, if offered in proper form, would also be admissible does not persuade us that it is wrong to use after-tax figures instead of gross earnings in projecting what the decedent's financial contributions to his survivors would have been had this tragic accident not occurred. 12 Respondent also argues that evidence concerning costs of litigation, including her attorney's fees, is equally pertinent to a determination of what amount will actually compensate the survivors for their monetary loss. In a sense this is, of course, true. But the argument that attorney's fees must be added to a plaintiff's recovery if the award is truly to make him whole is contrary to the generally applicable "American Rule." See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141. The FELA, however, unlike a number of other federal statutes,9 does not authorize recovery of attorney's fees by the successful litigant. Only if the Congress were to provide for such a recovery would it be proper to consider them. In any event, it surely is not proper for the Judiciary to ignore the demonstrably relevant factor of income tax in measuring damages in order to offset what may be perceived as an undesirable or unfair rule regarding attorney's fees.10 II 13 Section 104(a)(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 104(a)(2), provides that the amount of any damages received on account of personal injuries is not taxable income.11 The section is construed to apply to wrongful-death awards; they are not taxable income to the recipient.12 14 Although the law is perfectly clear, it is entirely possible that the members of the jury may assume that a plaintiff's recovery in a case of this kind will be subject to federal taxation, and that the award should be increased substantially in order to be sure that the injured party is fully compensated. The Missouri Supreme Court expressed the opinion that "[i]t is reasonable to assume the average juror would believe [that its verdict will] be subject to such taxes." Dempsey v. Thompson, 363 Mo. 339, 346, 251 S.W.2d 42, 45 (1952). And Judge Aldisert, writing for the Third Circuit, agreed: 15 "We take judicial notice of the 'tax consciousness' of the American public. Yet, we also recognize, as did the court in Dempsey v. Thompson, 363 Mo. 339, 251 S.W.2d 42 (1952), that few members of the general public are aware of the special statutory exception for personal injury awards contained in the Internal Revenue Code. 16 " '[T]here is always danger that today's tax-conscious juries may assume (mistakenly of course) that the judgment will be taxable and therefore make their verdict big enough so that plaintiff would get what they think he deserves after the imaginary tax is taken out of it.' 17 "II Harper & James, The Law of Torts § 25.12, at 1327-28 (1956)." (Footnote omitted.) Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1251 (1971), cert. denied, 404 U. S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165. 18 A number of other commentators have also identified that risk.13 19 In this case the respondent's expert witness computed the amount of pecuniary loss at $302,000, plus the value of the care and training that decedent would have provided to his young children; the jury awarded damages of $775,000. It is surely not fanciful to suppose that the jury erroneously believed that a large portion of the award would be payable to the Federal Government in taxes, and that therefore it improperly inflated the recovery. Whether or not this speculation is accurate, we agree with petitioner that, as Judge Ely wrote for the Ninth Circuit, 20 "[t]o put the matter simply, giving the instruction can do no harm, and it can certainly help by preventing the jury from inflating the award and thus overcompensating the plaintiff on the basis of an erroneous assumption that the judgment will be taxable." Burlington Northern, Inc. v. Boxberger, 529 F.2d 284, 297 (1975). 21 We hold that it was error to refuse the requested instruction in this case. That instruction was brief and could be easily understood. It would not complicate the trial by making additional qualifying or supplemental instructions necessary. It would not be prejudicial to either party, but would merely eliminate an area of doubt or speculation that might have an improper impact on the computation of the amount of damages. 22 The judgment is reversed, and the case is remanded to the Appellate Court of Illinois for further proceedings not inconsistent with this opinion. 23 It is so ordered. 24 Mr. Justice BLACKMUN, with whom Mr. Justice MARSHALL joins, dissenting. 25 In this action for wrongful death arising under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51-60, the Court today holds that if an award is granted, federal income taxes on the decedent's lost earnings are to be taken into account and are to reduce the amount of the award. The Court further holds that, on request, the jury must be instructed that the award is not subject to federal income tax. 26 I agree with neither ruling. In my view, by mandating adjustment of the award by way of reduction for federal income taxes that would have been paid by the decedent on his earnings, the Court appropriates for the tortfeasor a benefit intended to be conferred on the victim or his survivors. And in requiring that the jury be instructed that a wrongful-death award is not subject to federal income tax, the Court opens the door for a variety of admonitions to the jury not to "misbehave," and unnecessarily interjects what is now to be federal law into the administration of a trial in a state court. 27 In this day of substantial income taxes, one is sorely tempted, in jury litigation, to accept the propriety of admitting evidence as to a tort victim's earnings net after estimated income taxes, and of instructing the jury that an award will be tax-free. This, it could be urged, is only common sense and a recognition of financial realities. 28 Ordinarily, however, the effect of an income tax upon the recipient of a payment is of no real or ultimate concern to the payer. Apart from required withholding, it just is not the payer's responsibility or, indeed, "any of his business." The concept of "net after taxes" and the omnipresence of the tax collector, to be sure, are present facts of life and are within the constant awareness of both recipient and payer. But these factors do not change the basic character of an award for damages, whether that award be one to compensate the surviving victim for his injury, or one to compensate the deceased victim's survivors, by way of statutory wrongful-death benefit, for their loss. The income tax effect should flow and be retained in its own channel. Surely, it should not operate to assist the tortfeasor by way of a benefit, perhaps even a windfall. 29 * The employer-petitioner argues, and the Court holds, that federal income taxes that would have been paid by the deceased victim must be subtracted in computing the amount of the wrongful-death award. Were one able to ignore and set aside the uncertainties, estimates, assumptions and complexities involved in computing and effectuating that subtraction, this might not be an unreasonable legislative proposition in a compensatory tort system. Neither petitioner nor the Court, however, recognizes that the premise of such an argument is the nontaxability, under the Internal Revenue Code, of the wrongful-death award itself. 30 By not taxing the award, Congress has bestowed a benefit.1 Although the parties disagree over the origin of the tax-free status of the wrongful-death award,2 it is surely clear that the lost earnings could be taxed as income. Cf. Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430-431, 75 S.Ct. 473, 476-477, 99 L.Ed. 483 (1955). See generally M. Chirelstein, Federal Income Taxation 39-40 (1977). In my view, why Congress created this benefit under one statute is relevant in deciding where the benefit should be allocated under another statute enacted by Congress.3 31 While Congress has not articulated its reasons for not taxing a wrongful-death award, it is highly unlikely that it intended to confer this benefit on the tortfeasor. Two more probable purposes for the exclusion are apparent. First, taxing the award could involve the same uncertainties and complexities noted by respondent and the majority of the courts of this country as a reason for not taking income taxes into account in computing the award. Congress may have decided that it is simply not worthwhile to enact a complex and administratively burdensome system in order to approximate the tax treatment of the income if, in fact, it had been earned over a period of time by the decedent. Second, Congress may have intended to confer a humanitarian benefit on the victim or victims of the tort. One District Court has reasoned: 32 "The court can divine no societal purpose that would be furthered by awarding wrongdoing defendants with the benefit of this Congressional largesse. A societal purpose would be served by benefiting innocent victims of tortious conduct. Indeed, since the victims' chances of needing public relief are thereby diminished, this concern would be greater, not less, in the case of death, where the loss of earning capacity is total. This court therefore concludes that Congress, as with all exemptions under Section 104, '. . . intended to relieve a taxpayer who has the misfortune to become ill or injured . . ..' " Huddell v. Levin, 395 F.Supp. 64, 87 (N.J.1975),4 quoting Epmeier v. United States, 199 F.2d 508, 511 (CA7 1952), quoted in turn in Haynes v. United States, 353 U.S. 81, 84-85, n. 3, 77 S.Ct. 649, 651, 1 L.Ed.2d 671 (1957). 33 See also Comment, Income Tax Effects on Personal Injury Recoveries, 30 La.L.Rev. 672, 685 (1970); Note, 69 Harv.L.Rev. 1495, 1496 (1956); Note, Taxation of Damage Recoveries from Litigation, 40 Cornell L.Q. 345, 346 (1955). 34 Whichever of these concerns it was that motivated Congress, transfer of the tax benefit to the FELA tortfeasor-defendant is inconsistent with that purpose. If Congress felt that it was not worth the effort to estimate the decedent's prospective tax liability on behalf of the public fisc, it is unlikely that it would want to require this effort on behalf of the tortfeasor. And Congress would not confer a humanitarian benefit on tort victims or their survivors in the Internal Revenue Code, only to take it away from victims or their survivors covered by the FELA. I conclude, therefore, that any income tax effect on lost earnings should not be considered in the computation of a damages award under the FELA. II 35 The Court concludes that, as a matter of federal law, the jury in a FELA case must be instructed, on request, that the damages award is not taxable. This instruction is mandated, it is said, because "it is entirely possible that the members of the jury may assume that a plaintiff's recovery . . . will be subject to federal taxation, and that the award should be increased substantially in order to be sure that the injured party is fully compensated." Ante, at 496. The Court finds it "surely not fanciful to suppose" that the jury acted on that assumption in this case. Ante, at 497. 36 The required instruction is purely cautionary in nature. It does not affect the determination of liability or the measure of damages. It does nothing more than call a basically irrelevant factor to the jury's attention, and then directs the jury to forget that matter. Even if federal law governed such an admonition to the jury not to misbehave, the instruction required by the Court seems to me to be both unwise and unjustified, and almost an affront to the practical wisdom of the jury. 37 It also is "entirely possible" that the jury "may" increase its damages award in the belief that the defendant is insured, or that the plaintiff will be obligated for substantial attorney's fees, or that the award is subject to state (as well as federal) income tax, or on the basis of any number of other extraneous factors. Charging the jury about every conceivable matter as to which it should not misbehave or miscalculate would be burdensome and could be confusing. Yet the Court's decision today opens the door to that possibility. There certainly is no evidence in this record to indicate that the jury is any more likely to act upon an erroneous assumption about an award's being subject to federal income tax than about any other collateral matter. Although the Court suggests that the difference in the expert's estimation of the pecuniary loss and the total amount of the award represents inflation of the award for federal income taxes, ante, at 496-498, this is pure surmise. The jury was instructed that it could compensate for factors on which experts could not place a precise dollar value, and it is "entirely possible" that these, instead, were the basis of the award. 38 In any event, it has long been settled that the giving of cautionary instructions is governed by state law when a FELA action is brought in state court. "[Q]uestions of procedure and evidence [are] to be determined according to the law of the forum [in cases arising under the FELA]." Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916). This Court, to be sure, has asserted federal control over a number of incidents of state trial practice that might appear to be procedural, and has done so out of concern, apparently, for protecting the rights of FELA plaintiffs. See, e. g., Brown v. Western R. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100 (1949) (a State cannot apply, in a FELA case, its usual rule that pleadings are construed against the pleader); Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952) (FELA plaintiff is entitled to a jury trial in state court notwithstanding a contrary state rule); C. Wright, Law of Federal Courts 195-196 (3d ed. 1976); Hill, Substance and Procedure in State FELA Actions—The Converse of the Erie Problem?, 17 Ohio St.L.J. 384 (1956). I agree, of course, that state rules that interfere with federal policy are to be rejected, even if they might be characterized as "procedural." See, e. g., Note, State Enforcement of Federally Created Rights, 73 Harv.L.Rev. 1551, 1560-1561 (1960). See generally Note, Procedural Protection for Federal Rights in State Courts, 30 U.Cin.L.Rev. 184 (1961). I cannot conclude, however, that a purely cautionary instruction to the jury not to misbehave implicates any federal interest. This issue truly can be characterized as one of the "ordinary incidents of state procedure," Dickinson v. Stiles, 246 U.S. 631, 633, 38 S.Ct. 415, 416, 62 L.Ed. 908 (1918), which should be governed by state law. 39 Since the law of Illinois, where this case arose, is that it is not error to refuse to instruct the jury as to the nontaxability of the award, Raines v. New York Central R. Co., 51 Ill.2d 428, 430, 283 N.E.2d 230, 232, cert. denied, 409 U.S. 983, 93 S.Ct. 322, 34 L.Ed.2d 247 (1972), and since I believe the trial court correctly excluded evidence of the prospective tax liability of the deceased victim, I would affirm the judgment of the Appellate Court of Illinois. 1 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq. 2 The issue of liability was vigorously contested at the trial and was the subject of extensive consideration by the Appellate Court of Illinois, First District. See 62 Ill.App.3d 653, 19 Ill.Dec. 357, 378 N.E.2d 1232 (1978). No aspect of that issue, however, is now before us. 3 App. to Pet. for Cert. A27-A28. 4 Respondent argues that the excess is adequately explained by the jury's estimate of the pecuniary value of the guidance, instruction, and training that the decedent would have provided to his children. 5 One of the purposes of the Federal Employers' Liability Act was to "create uniformity throughout the Union" with respect to railroads' financial responsibility for injuries to their employees. H.R.Rep. No. 1386, 60th Cong., 1st Sess., 3 (1908). See also Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 362, 72 S.Ct. 312, 314, 96 L.Ed. 398; Brady v. Southern R. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239; Hill, Substance and Procedure in State FELA Actions—The Converse of the Erie Problem?, 17 Ohio St.L.J. 384 (1956). 6 "The Supreme Court of the United States has not spoken on this issue. Absent an authoritative pronouncement by that court we will follow the decisions of our own supreme court in Raines v. New York Central R. R. Co. (1972), 51 Ill.2d 428, 430, 283 N.E.2d 230, cert. denied (1972), 409 U.S. 983, 93 S.Ct. 322, 34 L.Ed.2d 247, and Hall v. Chicago & North Western Ry. Co. (1955), 5 Ill.2d 135, 149-52, 125 N.E.2d 77 . . . ." 62 Ill.App.3d, at 668-669, 19 Ill.Dec., at 370, 378 N.E.2d, at 1245. 7 This is not to say, however, that introduction of such evidence must be permitted in every case. If the impact of future income tax in calculating the award would be de minimis, introduction of the evidence may cause more confusion than it is worth. Cf. Fed.Rule Evid. 403. 8 See McWeeney v. New York, N. H. & H. R. Co., 282 F.2d 34, 37 (CA2 1960), cert. denied, 364 U.S. 870, 81 S.Ct. 115, 5 L.Ed.2d 93. 9 See Civil Rights Act of 1964, Tit. VII, § 706(k), 78 Stat. 261, 42 U.S.C. § 2000e-5(k); Clayton Act, § 4, 38 Stat. 731, 15 U.S.C. § 15; and numerous others collected in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S., at 260-261, n. 33, 95 S.Ct., at 1623-1624. 10 The dissent takes the position that § 104(a)(2) of the Internal Revenue Code, see nn. 11, 12, infra, which makes personal injury awards nontaxable, "appropriates for the tortfeasor a benefit intended to be conferred on the victim or his survivors." Post, at 498-499. But we see nothing in the language and are aware of nothing in the legislative history of § 104(a)(2) to suggest that it has any impact whatsoever on the proper measure of damages in a wrongful-death action. Moreover, netting out the taxes that the decedent would have paid does not confer a benefit on the tortfeasor any more than netting out the decedent's personal expenditures. Both subtractions are required in order to determine "the pecuniary benefits which the beneficiaries might have reasonably received . . . ." Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 70, 33 S.Ct. 192, 196, 57 L.Ed. 417. 11 The statute contains an exception for the reimbursement of medical expenses that have been taken as a deduction. The section provides in relevant part: "Except in the case of amounts attributable to (and not in excess of) deductions allowed under Section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include— * * * * * "(2) the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness . . . ." 12 See Rev.Rul. 54-19, 1954-1 Cum.Bull. 179. 13 See, e. g., Burns, A Compensation Award for Personal Injury or Wrongful Death Is Tax-Exempt: Should We Tell the Jury?, 14 DePaul L.Rev. 320 (1965); Feldman, Personal Injury Awards: Should Tax-Exempt Status Be Ignored?, 7 Ariz.L.Rev. 272 (1966); Nordstrom, Income Taxes and Personal Injury Awards, 19 Ohio St.L.J. 212 (1958). 1 The parties agree that these awards are not taxable. Of course, it would not be in the interest of either party to take the position that the award is taxable. 2 Respondent maintains that a wrongful-death award is within the exclusion of § 104(a)(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 104(a)(2), which provides that "gross income does not include . . . the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness." Brief for Respondent 8-9, and n. 2. Petitioner, on the other hand, contends that a wrongful-death award is not, in the words of the statute, "received . . . on account of personal injuries." Petitioner points to an early ruling that wrongful-death damages are not within the Code's definition of income because they merely replace contributions the decedent's relatives would have received from the decedent. I.T. 2420, VII-2 Cum.Bull. 123 (1928); see Rev.Rul. 54-19, 1954-1 Cum.Bull 179. Alternatively, petitioner argues that even if wrongful-death damages are covered by § 104(a)(2), Congress' purpose in enacting that subsection was not to aid tort victims. Rather, § 104(a)(2) can be traced to Congress' concern in 1918 that personal injury damages were not income within the meaning of the Sixteenth Amendment, citing H.R.Rep.No. 767, 65th Cong., 2d Sess., 9-10 (1918). Brief for Petitioner 31-32, n. 23. 3 Petitioner argues that a decision in this case that would rest on Congress' purpose not to subject wrongful-death awards to federal income taxation would "fundamentally alter all forms of injury compensation in this country," Reply Brief for Petitioner 10-11, since this nontaxability is not limited to awards under the FELA. My position, however, is merely that the policies embodied in one federal statute are relevant in aid of the interpretation of another federal statute. Absent a more explicit statement of Congress' intent, I would not infer a congressional purpose to override the States' traditional power to define the measure of damages applicable to state-created causes of action. 4 Vacated on other grounds, 537 F.2d 726 (CA3 1976).

78

444 U.S. 507 100 S.Ct. 763 62 L.Ed.2d 704 Frank W. SNEPP, IIIv.UNITED STATES. UNITED STATES v. Frank W. SNEPP, III. Nos. 78-1871, 79-265. Feb. 19, 1980. Rehearing Denied April 14, 1980. See 445 U.S. 972, 100 S.Ct. 1668. PER CURIAM. 1 In No. 78-1871, Frank W. Snepp III seeks review of a judgment enforcing an agreement that he signed when he accepted employment with the Central Intelligence Agency (CIA). He also contends that punitive damages are an inappropriate remedy for the breach of his promise to submit all writings about the Agency for prepublication review. In No. 79-265, the United States conditionally cross petitions from a judgment refusing to find that profits attributable to Snepp's breach are impressed with a constructive trust. We grant the petitions for certiorari in order to correct the judgment from which both parties seek relief. 2 * Based on his experiences as a CIA agent, Snepp published a book about certain CIA activities in South Vietnam. Snepp published the account without submitting it to the Agency for prepublication review. As an express condition of his employment with the CIA in 1968, however, Snepp had executed an agreement promising that he would "not . . . publish . . . any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the Agency." App. to Pet. for Cert. in No. 78-1871, p. 59a. The promise was an integral part of Snepp's concurrent undertaking "not to disclose any classified information relating to the Agency without proper authorization." Id., at 58a.1 Thus, Snepp had pledged not to divulge classified information and not to publish any information without prepublication clearance. The Government brought this suit to enforce Snepp's agreement. It sought a declaration that Snepp had breached the contract, an injunction requiring Snepp to submit future writings for prepublication review, and an order imposing a constructive trust for the Government's benefit on all profits that Snepp might earn from publishing the book in violation of his fiduciary obligations to the Agency.2 3 The District Court found that Snepp had "willfully, deliberately and surreptitiously breached his position of trust with the CIA and the [1968] secrecy agreement" by publishing his book without submitting it for prepublication review. 456 F.Supp. 176, 179 (E.D.Va.1978). The court also found that Snepp deliberately misled CIA officials into believing that he would submit the book for prepublication clearance. Finally, the court determined as a fact that publication of the book had "caused the United States irreparable harm and loss." Id., at 180. The District Court therefore enjoined future breaches of Snepp's agreement and imposed a constructive trust on Snepp's profits. 4 The Court of Appeals accepted the findings of the District Court and agreed that Snepp had breached a valid contract.3 It specifically affirmed the finding that Snepp's failure to submit his manuscript for prepublication review had inflicted "irreparable harm" on intelligence activities vital to our national security. 595 F.2d 926, 935 (CA4 1979). Thus, the court upheld the injunction against future violations of Snepp's prepublication obligation. The court, however, concluded that the record did not support imposition of a constructive trust. The conclusion rested on the court's perception that Snepp had a First Amendment right to publish unclassified information and the Government's concession—for the purposes of this litigation—that Snepp's book divulged no classified intelligence. Id., at 935-936.4 In other words, the court thought that Snepp's fiduciary obligation extended only to preserving the confidentiality of classified material. It therefore limited recovery to nominal damages and to the possibility of punitive damages if the Government—in a jury trial could prove tortious conduct. 5 Judge Hoffman, sitting by designation, dissented from the refusal to find a constructive trust. The 1968 agreement, he wrote, "was no ordinary contract; it gave life to a fiduciary relationship and invested in Snepp the trust of the CIA." Id., at 938. Prepublication clearance was part of Snepp's undertaking to protect confidences associated with his trust. Punitive damages, Judge Hoffman argued, were both a speculative and inappropriate remedy for Snepp's breach. We agree with Judge Hoffman that Snepp breached a fiduciary obligation and that the proceeds of his breach are impressed with a constructive trust. II 6 Snepp's employment with the CIA involved an extremely high degree of trust. In the opening sentence of the agreement that he signed, Snepp explicitly recognized that he was entering a trust relationship.5 The trust agreement specifically imposed the obligation not to publish any information relating to the Agency without submitting the information for clearance. Snepp stipulated at trial that—after undertaking this obligation—he had been "assigned to various positions of trust" and that he had been granted "frequent access to classified information, including information regarding intelligence sources and methods." 456 F.Supp., at 178.6 Snepp published his book about CIA activities on the basis of this background and exposure. He deliberately and surreptitiously violated his obligation to submit all material for prepublication review. Thus, he exposed the classified information with which he had been entrusted to the risk of disclosure. 7 Whether Snepp violated his trust does not depend upon whether his book actually contained classified information. The Government does not deny—as a general principle—Snepp's right to publish unclassified information. Nor does it contend—at this stage of the litigation—that Snepp's book contains classified material. The Government simply claims that, in light of the special trust reposed in him and the agreement that he signed, Snepp should have given the CIA an opportunity to determine whether the material he proposed to publish would compromise classified information or sources. Neither of the Government's concessions undercuts its claim that Snepp's failure to submit to prepublication review was a breach of his trust. 8 Both the District Court and the Court of Appeals found that a former intelligence agent's publication of unreviewed material relating to intelligence activities can be detrimental to vital national interests even if the published information is unclassified. When a former agent relies on his own judgment about what information is detrimental, he may reveal information that the CIA—with its broader understanding of what may expose classified information and confidential sources—could have identified as harmful. In addition to receiving intelligence from domestically based or controlled sources, the CIA obtains information from the intelligence services of friendly nations7 and from agents operating in foreign countries. The continued availability of these foreign sources depends upon the CIA's ability to guarantee the security of information that might compromise them and even endanger the personal safety of foreign agents. 9 Undisputed evidence in this case shows that a CIA agent's violation of his obligation to submit writings about the Agency for prepublication review impairs the CIA's ability to perform its statutory duties. Admiral Turner, Director of the CIA, testified without contradiction that Snepp's book and others like it have seriously impaired the effectiveness of American intelligence operations. He said, "Over the last six to nine months, we have had a number of sources discontinue work with us. We have had more sources tell us that they are very nervous about continuing work with us. We have had very strong complaints from a number of foreign intelligence services with whom we conduct liaison, who have questioned whether they should continue exchanging information with us, for fear it will not remain secret. I cannot estimate to you how many potential sources or liaison arrangements have never germinated because people were unwilling to enter into business with us." 456 F.Supp., at 179-180.8 10 In view of this and other evidence in the record, both the District Court and the Court of Appeals recognized that Snepp's breach of his explicit obligation to submit his material classified or not—for prepublication clearance has irreparably harmed the United States Government. 595 F.2d, at 935; 456 F.Supp., at 180.9 III 11 The decision of the Court of Appeals denies the Government the most appropriate remedy for Snepp's acknowledged wrong. Indeed, as a practical matter, the decision may well leave the Government with no reliable deterrent against similar breaches of security. No one disputes that the actual damages attributable to a publication such as Snepp's generally are unquantifiable. Nominal damages are a hollow alternative, certain to deter no one. The punitive damages recoverable after a jury trial are speculative and unusual. Even if recovered, they may bear no relation to either the Government's irreparable loss or Snepp's unjust gain. 12 The Government could not pursue the only remedy that the Court of Appeals left it10 without losing the benefit of the bargain it seeks to enforce. Proof of the tortious conduct necessary to sustain an award of punitive damages might force the Government to disclose some of the very confidences that Snepp promised to protect. The trial of such a suit, before a jury if the defendant so elects, would subject the CIA and its officials to probing discovery into the Agency's highly confidential affairs. Rarely would the Government run this risk. In a letter introduced at Snepp's trial, former CIA Director Colby noted the analogous problem in criminal cases. Existing law, he stated, "requires the revelation in open court of confirming or additional information of such a nature that the potential damage to the national security precludes prosecution." App. to Pet. for Cert. in No. 78-1871, p. 68a. When the Government cannot secure its remedy without unacceptable risks, it has no remedy at all. 13 A constructive trust, on the other hand, protects both the Government and the former agent from unwarranted risks. This remedy is the natural and customary consequence of a breach of trust.11 It deals fairly with both parties by conforming relief to the dimensions of the wrong. If the agent secures prepublication clearance, he can publish with no fear of liability. If the agent publishes unreviewed material in violation of his fiduciary and contractual obligation, the trust remedy simply requires him to disgorge the benefits of his faithlessness. Since the remedy is swift and sure, it is tailored to deter those who would place sensitive information at risk. And since the remedy reaches only funds attributable to the breach, it cannot saddle the former agent with exemplary damages out of all proportion to his gain. The decision of the Court of Appeals would deprive the Government of this equitable and effective means of protecting intelligence that may contribute to national security. We therefore reverse the judgment of the Court of Appeals insofar as it refused to impose a constructive trust on Snepp's profits, and we remand the cases to the Court of Appeals for reinstatement of the full judgment of the District Court. 14 So ordered. 15 Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 16 In 1968, Frank W. Snepp signed an employment agreement with the CIA in which he agreed to submit to the Agency any information he intended to publish about it for prepublication review.1 The purpose of such an agreement, as the Fourth Circuit held, is not to give the CIA the power to censor its employees' critical speech, but rather to ensure that classified, nonpublic information is not disclosed without the Agency's permission. 595 F.2d 926, 932 (1979); see also United States v. Marchetti, 466 F.2d 1309, 1317 (CA4 1972), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516. 17 In this case Snepp admittedly breached his duty to submit the manuscript of his book, Decent Interval, to the CIA for prepublication review. However, the Government has conceded that the book contains no classified, nonpublic material.2 Thus, by definition, the interest in confidentiality that Snepp's contract was designed to protect has not been compromised. Nevertheless, the Court today grants the Government unprecedented and drastic relief in the form of a constructive trust over the profits derived by Snepp from the sale of the book. Because that remedy is not authorized by any applicable law and because it is most inappropriate for the Court to dispose of this novel issue summarily on the Government's conditional cross-petition for certiorari, I respectfully dissent. 18 * The rule of law the Court announces today is not supported by statute, by the contract, or by the common law. Although Congress has enacted a number of criminal statutes punishing the unauthorized dissemination of certain types of classified information,3 it has not seen fit to authorize the constructive trust remedy the Court creates today. Nor does either of the contracts Snepp signed with the Agency provide for any such remedy in the event of a breach.4 The Court's per curiam opinion seems to suggest that its result is supported by a blend of the law of trusts and the law of contracts.5 But neither of these branches of the common law supports the imposition of a constructive trust under the circumstances of this case. 19 Plainly this is not a typical trust situation in which a settlor has conveyed legal title to certain assets to a trustee for the use and benefit of designated beneficiaries. Rather, it is an employment relationship in which the employee possesses fiduciary obligations arising out of his duty of loyalty to his employer. One of those obligations, long recognized by the common law even in the absence of a written employment agreement, is the duty to protect confidential or "classified" information. If Snepp had breached that obligation, the common law would support the implication of a constructive trust upon the benefits derived from his misuse of confidential information.6 20 But Snepp did not breach his duty to protect confidential information. Rather, he breached a contractual duty, imposed in aid of the basic duty to maintain confidentiality, to obtain prepublication clearance. In order to justify the imposition of a constructive trust, the majority attempts to equate this contractual duty with Snepp's duty not to disclose, labeling them both as "fiduciary." I find nothing in the common law to support such an approach. 21 Employment agreements often contain covenants designed to ensure in various ways that an employee fully complies with his duty not to disclose or misuse confidential information. One of the most common is a covenant not to compete. Contrary to the majority's approach in this case, the courts have not construed such covenants broadly simply because they support a basic fiduciary duty; nor have they granted sweeping remedies to enforce them. On the contrary, because such covenants are agreements in restraint of an individual's freedom of trade, they are enforceable only if they can survive scrutiny under the "rule of reason." That rule, originally laid down in the seminal case of Mitchel v. Reynolds, 1 P. Wms. 181, 24 Eng.Rep. 347 (1711), requires that the covenant be reasonably necessary to protect a legitimate interest of the employer (such as an interest in confidentiality), that the employer's interest not be outweighed by the public interest,7 and that the covenant not be of any longer duration or wider geographical scope than necessary to protect the employer's interest.8 22 The Court has not persuaded me that a rule of reason analysis should not be applied to Snepp's covenant to submit to prepublication review. Like an ordinary employer, the CIA has a vital interest in protecting certain types of information; at the same time, the CIA employee has a countervailing interest in preserving a wide range of work opportunities (including work as an author) and in protecting his First Amendment rights. The public interest lies in a proper accommodation that will preserve the intelligence mission of the Agency while not abridging the free flow of unclassified information. When the Government seeks to enforce a harsh restriction on the employee's freedom,9 despite its admission that the interest the agreement was designed to protect—the confidentiality of classified information—has not been compromised, an equity court might well be persuaded that the case is not one in which the covenant should be enforced.10 23 But even assuming that Snepp's covenant to submit to prepublication review should be enforced, the constructive trust imposed by the Court is not an appropriate remedy. If an employee has used his employer's confidential information for his own personal profit, a constructive trust over those profits is obviously an appropriate remedy because the profits are the direct result of the breach. But Snepp admittedly did not use confidential information in his book; nor were the profits from his book in any sense a product of his failure to submit the book for prepublication review. For, even if Snepp had submitted the book to the Agency for prepublication review, the Government's censorship authority would surely have been limited to the excision of classified material. In this case, then, it would have been obliged to clear the book for publication in precisely the same form as it now stands.11 Thus, Snepp has not gained any profits as a result of his breach; the Government, rather than Snepp, will be unjustly enriched if he is required to disgorge profits attributable entirely to his own legitimate activity. 24 Despite the fact that Snepp has not caused the Government the type of harm that would ordinarily be remedied by the imposition of a constructive trust, the Court attempts to justify a constructive trust remedy on the ground that the Government has suffered some harm. The Court states that publication of "unreviewed material" by a former CIA agent "can be detrimental to vital national interests even if the published information is unclassified." Ante, at 511-512. It then seems to suggest that the injury in such cases stems from the Agency's inability to catch "harmful" but unclassified information before it is published. I do not believe, however, that the Agency has any authority to censor its employees' publication of unclassified information on the basis of its opinion that publication may be "detrimental to vital national interests" or otherwise "identified as harmful." Ibid. The CIA never attempted to assert such power over Snepp in either of the contracts he signed; rather, the Agency itself limited its censorship power to preventing the disclosure of "classified" information. Moreover, even if such a wide-ranging prior restraint would be good national security policy, I would have great difficulty reconciling it with the demands of the First Amendment. 25 The Court also relies to some extent on the Government's theory at trial that Snepp caused it harm by flouting his prepublication review obligation and thus making it appear that the CIA was powerless to prevent its agents from publishing any information they chose to publish, whether classified or not. The Government theorized that this appearance of weakness would discourage foreign governments from cooperating with the CIA because of a fear that their secrets might also be compromised. In support of its position that Snepp's book had in fact had such an impact, the Government introduced testimony by the Director of the CIA, Admiral Stansfield Turner, stating that Snepp's book and others like it had jeopardized the CIA's relationship with foreign intelligence services by making them unsure of the Agency's ability to maintain confidentiality. Admiral Turner's truncated testimony does not explain, however, whether these unidentified "other" books actually contained classified information.12 If so, it is difficult to believe that the publication of a book like Snepp's, which does not reveal classified information, has significantly weakened the Agency's position. Nor does it explain whether the unidentified foreign agencies who have stopped cooperating with the CIA have done so because of a legitimate fear that secrets will be revealed or because they merely disagree with our Government's classification policies.13 26 In any event, to the extent that the Government seeks to punish Snepp for the generalized harm he has caused by failing to submit to prepublication review and to deter others from following in his footsteps, punitive damages is, as the Court of Appeals held, clearly the preferable remedy "since a constructive trust depends on the concept of unjust enrichment rather than deterrence and punishment. See D. Dobbs, Law of Remedies § 3.9 at 205 and § 4.3 at 246 (1973)." 595 F.2d, at 937.14 II 27 The Court's decision to dispose of this case summarily on the Government's conditional cross-petition for certiorari is just as unprecedented as its disposition of the merits. 28 Snepp filed a petition for certiorari challenging the Fourth Circuit's decision insofar as it affirmed the entry of an injunction requiring him to submit all future manuscripts for prepublication review and remanded for a determination of whether punitive damages would be appropriate for his failure to submit Decent Interval to the Agency prior to its publication. The Government filed a brief in opposition as well as a cross petition for certiorari; the Government specifically stated, however, that it was cross-petitioning only to bring the entire case before the Court in the event that the Court should decide to grant Snepp's petition. The Government explained that "[b]ecause the contract remedy provided by the court of appeals appears to be sufficient in this case to protect the Agency's interest, the government has not independently sought review in this Court." In its concluding paragraph the Government stated: "if this Court grants [Snepp's] . . . petition for a writ of certiorari in No. 78-1871, it should also grant this cross-petition. If the petition in No. 78-1871 is denied, this petition should also be denied." Pet. for Cert. in No. 79-265, p. 5. 29 Given the Government's position, it would be highly inappropriate, and perhaps even beyond this Court's jurisdiction, to grant the Government's petition while denying Snepp's. Yet that is in essence what has been done.15 The majority obviously does not believe that Snepp's claims merit this Court's consideration, for they are summarily dismissed in a footnote. Ante, at 509, n. 3. It is clear that Snepp's petition would not have been granted on its own merits. 30 The Court's opinion is a good demonstration of why this Court should not reach out to decide a question not necessarily presented to it, as it has done in this case. Despite the fact that the Government has specifically stated that the punitive damages remedy is "sufficient" to protect its interests, the Court forges ahead and summarily rejects that remedy on the grounds that (a) it is too speculative and thus would not provide the Government with a "reliable deterrent against similar breaches of security," ante, at 514, and (b) it might require the Government to reveal confidential information in court, the Government might forego damages rather than make such disclosures, and the Government might thus be left with "no remedy at all," ante, at 515. It seems to me that the Court is foreclosed from relying upon either ground by the Government's acquiescence in the punitive damages remedy. Moreover, the second rationale16 is entirely speculative and, in this case at least, almost certainly wrong. The Court states that 31 "[p]roof of the tortious conduct necessary to sustain an award of punitive damages might force the Government to disclose some of the very confidences that Snepp promised to protect." Ante, at 514. 32 Yet under the Court of Appeals' opinion the Government would be entitled to punitive damages simply by proving that Snepp deceived it into believing that he was going to comply with his duty to submit the manuscript for prepublication review and that the Government relied on these misrepresentations to its detriment. I fail to see how such a showing would require the Government to reveal any confidential information or to expose itself to "probing discovery into the Agency's highly confidential affairs." Ante, at 515. III 33 The uninhibited character of today's exercise in lawmaking is highlighted by the Court's disregard of two venerable principles that favor a more conservative approach to this case. 34 First, for centuries the English-speaking judiciary refused to grant equitable relief unless the plaintiff could show that his remedy at law was inadequate. Without waiting for an opportunity to appraise the adequacy of the punitive damages remedy in this case, the Court has jumped to the conclusion that equitable relief is necessary. 35 Second, and of greater importance, the Court seems unaware of the fact that its drastic new remedy has been fashioned to enforce a species of prior restraint on a citizen's right to criticize his government.17 Inherent in this prior restraint is the risk that the reviewing agency will misuse its authority to delay the publication of a critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy. The character of the covenant as a prior restraint on free speech surely imposes an especially heavy burden on the censor to justify the remedy it seeks. It would take more than the Court has written to persuade me that that burden has been met. 36 I respectfully dissent. 1 Upon the eve of his departure from the Agency in 1976, Snepp also executed a "termination secrecy agreement." That document reaffirmed his obligation "never" to reveal "any classified information, or any information concerning intelligence or CIA that has not been made public by CIA . . . without the express written consent of the Director of Central Intelligence or his representative." App. to Pet. for Cert. in No. 78-1871, p. 61a. 2 At the time of suit, Snepp already had received about $60,000 in advance payments. His contract with his publisher provides for royalties and other potential profits. 456 F.Supp. 176, 179 (E.D.Va.1978). 3 The Court of Appeals and the District Court rejected each of Snepp's defenses to the enforcement of his contract. 595 F.2d 926, 931-934 (CA4 1979); 456 F.Supp., at 180-181. In his petition for certiorari, Snepp relies primarily on the claim that his agreement is unenforceable as a prior restraint on protected speech. When Snepp accepted employment with the CIA, he voluntarily signed the agreement that expressly obligated him to submit any proposed publication for prior review. He does not claim that he executed this agreement under duress. Indeed, he voluntarily reaffirmed his obligation when he left the Agency. We agree with the Court of Appeals that Snepp's agreement is an "entirely appropriate" exercise of the CIA Director's statutory mandate to "protec[t] intelligence sources and methods from unauthorized disclosure," 50 U.S.C. § 403(d)(3). 595 F.2d, at 932. Moreover, this Court's cases make clear that—even in the absence of an express agreement—the CIA could have acted to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment. CSC v. Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 2890, 37 L.Ed.2d 796 (1973); see Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980); Buckley v. Valeo, 424 U.S. 1, 25-28, 96 S.Ct. 612, 637-639, 46 L.Ed.2d 659 (1976); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976); id., at 844-848, 96 S.Ct., at 1220-1222 (POWELL, J., concurring); Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972). The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service. See infra, at 511-512. The agreement that Snepp signed is a reasonable means for protecting this vital interest. 4 The Government's concession distinguished this litigation from United States v. Marchetti, 466 F.2d 1309 (CA4), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972). There, the Government claimed that a former CIA employee intended to violate his agreement not to publish any classified information. 466 F.2d, at 1313. Marchetti therefore did not consider the appropriate remedy for the breach of an agreement to submit all material for prepublication review. By relying on Marchetti in this litigation, the Court of Appeals overlooked the difference between Snepp's breach and the violation at issue in Marchetti. 5 The first sentence of the 1968 agreement read: "I, Frank W. Snepp, III, understand that upon entering duty with the Central Intelligence Agency I am undertaking a position of trust in that Agency of the Government. . . ." App. to Pet. for Cert. in No. 78-1871, p. 58a. 6 Quite apart from the plain language of the agreement, the nature of Snepp's duties and his conceded access to confidential sources and materials could establish a trust relationship. See 595 F.2d, at 939 (Hoffman, J., concurring in part and dissenting in part). Few types of governmental employment involve a higher degree of trust than that reposed in a CIA employee with Snepp's duties. 7 Every major nation in the world has an intelligence service. Whatever fairly may be said about some of its past activities, the CIA (or its predecessor the Office of Strategic Services) is an agency thought by every President since Franklin D. Roosevelt to be essential to the security of the United States and—in a sense—the free world. It is impossible for a government wisely to make critical decisions about foreign policy and national defense without the benefit of dependable foreign intelligence. See generally T. Powers, The Man Who Kept the Secrets (1979). 8 In questioning the force of Admiral Turner's testimony, Mr. Justice STEVENS' dissenting opinion suggests that the concern of foreign intelligence services may not be occasioned by the hazards of allowing an agent like Snepp to publish whatever he pleases, but by the release of classified information or simply the disagreement of foreign agencies with our Government's classification policy. Post, at 522-523. Mr. Justice STEVENS' views in this respect not only find no support in the record, but they also reflect a misapprehension of the concern reflected by Admiral Turner's testimony. If in fact information is unclassified or in the public domain, neither the CIA nor foreign agencies would be concerned. The problem is to ensure in advance, and by proper procedures, that information detrimental to national interest is not published. Without a dependable prepublication review procedure, no intelligence agency or responsible Government official could be assured that an employee privy to sensitive information might not conclude on his own—innocently or otherwise that it should be disclosed to the world. The dissent argues that the Court is allowing the CIA to "censor" its employees' publications. Post, at 522. Snepp's contract, however, requires no more than a clearance procedure subject to judicial review. If Snepp, in compliance with his contract, had submitted his manuscript for review and the Agency had found it to contain sensitive material, presumably—if one accepts Snepp's present assertion of good intentions—an effort would have been made to eliminate harmful disclosures. Absent agreement in this respect, the Agency would have borne the burden of seeking an injunction against publication. See Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (CA4), cert. denied, 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 482 (1975); United States v. Marchetti, 466 F.2d 1309 (CA4), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972). 9 Although both the District Court and the Court of Appeals expressly found otherwise, Mr. Justice STEVENS says that "the interest in confidentiality that Snepp's contract was designed to protect has not been compromised." Post, at 561-517. Thus, on the basis of a premise wholly at odds with the record, the dissent bifurcates Snepp's 1968 agreement and treats its interdependent provisions as if they imposed unrelated obligations. Mr. Justice STEVENS then analogizes Snepp's prepublication review agreement with the Government to a private employee's covenant not to compete with his employer. Post, at 518-520. A body of private law intended to preserve competition, however, simply has no bearing on a contract made by the Director of the CIA in conformity with his statutory obligation to "protec[t] intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403(d)(3). 10 Judge Hoffman's dissent suggests that even this remedy may be unavailable if the Government must bring suit in a State that allows punitive damages only upon proof of compensatory damages. 595 F.2d., at 940. The Court of Appeals majority, however, held as a matter of federal law that the nominal damages recoverable for any breach of a trust agreement will support an exemplary award. See id., at 936, and n. 10, 937-938. 11 See id., at 939 (Hoffman, J., concurring in part and dissenting in part). Mr. Justice STEVENS concedes that, even in the absence of a written contract, an employee has a fiduciary obligation to protect confidential information obtained during the course of his employment. Post, at 518. He also concedes that all personal profits gained from the exploitation of such information are impressed with a constructive trust in favor of the employer. Post, at 521. In this case, he seems to think that the common law would not treat information as "confidential" unless it were "classified." See, e. g., post, at 518. We have thought that the common-law obligation was considerably more expansive. See, e. g., Restatement (Second) of Agency §§ 396(c), 400 and Comment c, 404 and Comments b, d (1958); 5 A. Scott, Trusts § 505 (3d ed. 1967). But since this case involves the breach of a trust agreement that specifically required the republication review of all information about the employer, we need not look to the common law to determine the scope of Snepp's fiduciary obligation. 1 Snepp also signed a termination agreement in 1976 in which he made substantially the same commitment. 2 In response to an interrogatory asking whether it contended that "Decent Interval contains classified information or any information concerning intelligence or CIA that has not been made public by CIA," the Government stated that "[f]or the purpose of this action, plaintiff does not so contend." Record Item No. 24, p. 14. Because of this concession, the District Judge sustained the Government's objections to defense efforts to determine whether Decent Interval in fact contains information that the Government considers classified. See, e. g., the testimony of Admiral Stansfield Turner, Director of the CIA, Tr. 135; and of Herbert Hetu, the CIA's Director of Public Affairs, Tr. 153. 3 See, e. g., 18 U.S.C. § 798, which imposes a prison term of 10 years and a $10,000 fine for knowingly and willfully publishing certain types of classified information; 18 U.S.C. § 794, which makes it a criminal offense punishable by life in prison to communicate national defense information to a foreign government; and 5 U.S.C. § 8312, which withdraws the right to Government retirement benefits from a person convicted of violating these statutes. See also Exec.Order No. 12065, 3 CFR 190 (1979), note following 50 U.S.C. § 401 (1976 ed., Supp. II), which provides administrative sanctions, including discharge, against employees who publish classified information. Thus, even in the absence of a constructive trust remedy, an agent like Snepp would hardly be free, as the majority suggests, "to publish whatever he pleases." Ante, at 513, n. 8. 4 In both his original employment agreement and the termination agreement Snepp acknowledged the criminal penalties that might attach to any publication of classified information. In his employment agreement he also agreed that a breach of the agreement would be cause for termination of his employment. No other remedies were mentioned in either agreement. 5 In a footnote, see ante, at 515, n. 11, the Court suggests that it need not look to the common law to support its holding because the case involves a written contract. But, inasmuch as the contract itself does not state what remedy is to be applied in the event of a breach, the common law is the only source of law to which we can look to determine what constitutes an appropriate remedy. 6 See, e. g., Sperry Rand Corp. v. A-T-O, Inc., 447 F.2d 1387, 1392 (CA4 1971) (Virginia law), cert. denied, 405 U.S. 1017, 92 S.Ct. 1292, 31 L.Ed.2d 479; Tlapek v. Chevron Oil Co., 407 F.2d 1129 (CA8 1969) (Arkansas law); Structural Dynamics Research Corp. v. Engineering Mechanics Research Corp., 401 F.Supp. 1102, 1120 (E.D.Mich.1975) (Michigan law); Restatement (Second) of Agency § 396(c) (1958) ("Unless otherwise agreed, after the termination of the agency, the agent: . . . (c) has a duty to account for profits made by the sale or use of trade secrets and other confidential information, whether or not in competition with the principal . . ."). 7 As the court held in Herbert Morris, Ltd. v. Saxelby, [1916] A.C. 688, 704, the employer's interest in protecting trade secrets does not outweigh the public interest in keeping the employee in the work force: "[A]n employer can[not] prevent his employee from using the skill and knowledge in his trade or profession which he has learnt in the course of his employment by means of directions or instructions from the employer. That information and that additional skill he is entitled to use for the benefit of himself and the benefit of the public who gain the advantage of his having had such admirable instruction. The case in which the Court interferes for the purpose of protection is where use is made, not of the skill which the man may have acquired, but of the secrets of the trade or profession which he had no right to reveal to any one else. . . ." 8 See, e. g., Briggs v. R. R. Donnelley & Sons Co., 589 F.2d 39, 41 (CA1 1978)(Illinois law); American Hot Rod Assn., Inc. v. Carrier, 500 F.2d 1269, 1277 (CA4 1974) (North Carolina law); Alston Studios, Inc. v. Lloyd V. Gress & Associates, 492 F.2d 279, 282 (CA4 1974) (Virginia law); Mixing Equipment Co. v. Philadelphia Gear, Inc., 436 F.2d 1308, 1312 (CA3 1971) (New York law); Water Services, Inc. v. Tesco Chemicals, Inc., 410 F.2d 163, 167 (CA5 1969) (Georgia law); Restatement (Second) of Contracts § 330 (Tent. Draft No. 12, Mar. 1, 1977). 9 The covenant imposes a serious prior restraint on Snepp's ability to speak freely, see n. 17, infra, and is of indefinite duration and scope—factors that would make most similar covenants unenforceable. See, e. g., Alston Studios, Inc. v. Lloyd V. Gress & Associates, supra, 492 F.2d, at 283 (holding void under Virginia law a covenant with no geographical limitation); American Hot Rod Assn., Inc. v. Carrier, supra, 500 F.2d, at 1279 (holding void under North Carolina law a covenant with no durational or geographical limitation); E. L. Conwell & Co. v. Gutberlet, 429 F.2d 527, 528 (CA4 1970) (holding void under Maryland law a covenant with no durational or geographical limitation). 10 The Court correctly points out that the Government may regulate certain activities of its employees that would be protected by the First Amendment in other contexts. Ante, at 509, n. 3. But none of the cases it cites involved a requirement that an employee submit all proposed public statements for prerelease censorship or approval. The Court has not previously considered the enforceability of this kind of prior restraint or the remedy that should be imposed in the event of a breach. 11 If he had submitted the book to the Agency and the Agency had refused to consent to the publication of certain material in it, Snepp could have obtained judicial review to determine whether the Agency was correct in considering the material classified. See United States v. Marchetti, 466 F.2d 1309, 1317 (CA4 1972), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516. It is noteworthy that the Court does not disagree with the Fourth Circuit's view in Marchetti, reiterated in Snepp, that a CIA employee has a First Amendment right to publish unclassified information. Thus, despite its reference in footnote 3 of its opinion to the Government's so-called compelling interest in protecting "the appearance of confidentiality," ante, at 509, n. 3, and despite some ambiguity in the Court's reference to "detrimental" and "harmful" as opposed to "classified" information, ante, at 511-512, I do not understand the Court to imply that the Government could obtain an injunction against the publication of unclassified information. 12 The District Judge sustained the Government's objections to questions concerning the identity of other agents who had published the unauthorized works to which Admiral Turner referred. Tr. 136. However, Admiral Turner did testify that the harmful materials involved "[p]rimarily the appearance in the United States media of identification of sources and methods of collecting intelligence. . . ." Id., at 143. This type of information is certainly classified and is specifically the type of information that Snepp has maintained he did not reveal in Decent Interval. See, e. g., Snepp's December 7, 1977, interview on the Tomorrow show, in which he stated: "I have made a very determined effort not to expose sources or methods. . . ." Government's Requests for Admissions, Record Item 19, Exhibit I, p. 5. 13 Snepp's attorneys were foreclosed from asking Admiral Turner whether particular foreign sources had stopped cooperating with United States' authorities as a direct result of the publication of Decent Interval. Tr. 138. Thus, it is unclear whether or why foreign sources may have reacted unfavorably to its publication. However, William E. Colby, the CIA's former Director, did indicate in his testimony that foreign nations generally have a stricter secrecy code than does the United States. Id., at 175-176. 14 One of the Court's justifications for its constructive trust remedy is that "it cannot saddle the former agent with exemplary damages out of all proportion to his gain." Ante, at 516. This solicitude for Snepp's welfare is rather ironic in view of the Draconian nature of the remedy imposed by the Court today. 15 I have been unable to discover any previous case in which the Court has acted as it does today, reaching the merits of a conditional cross-petition despite its belief that the petition does not merit granting certiorari. 16 Which, it should be noted, does not appear anywhere in the Government's 5-page cross-petition. 17 The mere fact that the Agency has the authority to review the text of a critical book in search of classified information before it is published is bound to have an inhibiting effect on the author's writing. Moreover, the right to delay publication until the review is completed is itself a form of prior restraint that would not be tolerated in other contexts. See, e. g., New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822; Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683. In view of the national interest in maintaining an effective intelligence service, I am not prepared to say that the restraint is necessarily intolerable in this context. I am, however, prepared to say that, certiorari having been granted, the issue surely should not be resolved in the absence of full briefing and argument.

23

444 U.S. 472 100 S.Ct. 745 62 L.Ed.2d 676 The BOEING COMPANY, Petitioner,v.William R. VAN GEMERT et al. No. 78-1327. Argued Dec. 3, 1979. Decided Feb. 19, 1980. Syllabus Petitioner company called for the redemption of certain convertible debentures, fixing a date by which debenture holders could convert their debentures into shares of petitioner's stock and after which debenture holders could only redeem their debentures for slightly more than face value. After the deadline expired, some of the nonconverting debenture holders brought a class action against petitioner, claiming that it had violated federal and state laws by failing to give reasonably adequate notice of the redemption. The District Court ultimately entered judgment against petitioner, establishing the amount of its liability to the class as a whole, and fixing the amount that each class member could recover on a principal amount of $100 in debentures, with each individual recovery to carry its proportionate share of the total amount allowed for attorney's fees, expenses, and disbursements. Petitioner appealed only the judgment's provision as to attorney's fees, contending that such fees should be awarded only from the portion of the fund actually claimed by class members, not from the unclaimed portion of the judgment fund. The Court of Appeals affirmed, holding that since each class member had a present vested interest in the class recovery and could collect his share of the judgment upon request, absentee class members had received a benefit within the meaning of the common-fund doctrine, which allows the assessment of attorney's fees against a common fund created by the lawyers' efforts. Held : 1. The attorney's fee award in this case is a proper application of the common-fund doctrine, which rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its costs are unjustly enriched at the successful litigants' expense. The criteria for application of the doctrine are satisfied when, as here, each member of a certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum judgment recovered on his behalf. In this case, absentee class members need prove only their membership in the injured class to claim their logically ascertainable shares of the judgment fund. Their right to share the harvest of the suit upon proof of their identity, whether or not they exercise it, is a benefit in the fund created by the efforts of the class representatives and their counsel, and unless absentees contribute to the payment of attorney's fees incurred on their behalves, they will pay nothing for the creation of the fund and their representatives may bear additional costs. This inequity is rectified by the District Court's judgment requiring every class member to share attorney's fees to the same extent that he can share the recovery. Pp. 478-481. 2. The common-fund doctrine, as applied in this case, is entirely consistent with the American rule against taxing the losing party with the victor's attorney's fees. The class members, whether or not they assert their rights, are at least the equitable owners of their respective shares in the recovery, whereas petitioner's present interest is limited to its stake in resisting third-party claims against the fund in view of petitioner's colorable claim for the return of any unclaimed money. Although petitioner itself cannot be obliged to pay fees awarded to the class lawyers, its latent claim against unclaimed money may not defeat each class member's equitable obligation to share the expenses of litigation. Pp. 481-482. 2 Cir., 590 F.2d 433, affirmed. S. Hazard Gillespie, New York City, for petitioner. Norman Winer, New York City, for respondents. Mr. Justice POWELL delivered the opinion of the Court. 1 The question presented in this class action is whether a proportionate share of the fees awarded to lawyers who represented the successful class may be assessed against the unclaimed portion of the fund created by a judgment. 2 * In March 1966, The Boeing Co. called for the redemption of certain convertible debentures. Boeing announced the call through newspaper notices and mailings to investors who had registered their debentures. The notices, given in accordance with the indenture agreement, recited that each $100 amount of principal could be redeemed for $103.25 or converted into two shares of the company's common stock. They set March 29 as the deadline for the exercise of conversion rights. Two shares of the company's common stock on that date were worth $316.25. When the deadline expired, the holders of debentures with a face value of $1,544,300 had not answered the call. These investors were left with the right to redeem their debentures for slightly more than face value. 3 Van Gemert and several other nonconverting debenture holders brought a class action against Boeing in the United States District Court for the Southern District of New York. They claimed that Boeing had violated federal securities statutes as well as the law of New York by failing to give them reasonably adequate notice of the redemption. As damages, they sought the difference between the amount for which their debentures could be redeemed and the value of the shares into which the debentures could have been converted. The District Court dismissed the action on the ground that Boeing had given its debenture holders the notice required by the indenture agreement. The Court of Appeals for the Second Circuit reversed and remanded. It held that, under the New York law of contracts, the indenture agreement contained an implied obligation to give debenture holders reasonable notice of a redemption. The court concluded that the notice actually given was inadequate. 520 F.2d 1373, cert. denied, 423 U.S. 947, 96 S.Ct. 364, 46 L.Ed.2d 282 (1975). 4 On remand, the District Court awarded as damages the difference between the redemption price of the outstanding debentures and the price at which two shares of Boeing's common stock traded on the last day for exercising conversion rights. The court, however, refused to assess prejudgment interest against Boeing. There followed a second appeal. The class claimed that the stock should have been valued as of a later date and that Boeing was liable for prejudgment interest. Class members who had filed individual claims also contended that they were entitled to receive pro rata shares of any unclaimed damages. At the least, they argued, they should receive enough of the unclaimed money to pay their legal expenses. 5 The Court of Appeals found the class entitled to prejudgment interest on the award, but it approved the valuation date. The court also concluded that class members who proved their individual claims should not share in the unclaimed portion of the judgment. Allowing these class members to receive a proportionate part of the unclaimed money, the court held, would create the sort of "fluid class" recovery rejected in Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (CA2 1973), vacated and remanded on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Such a recovery would expropriate funds belonging to class members who had not asserted their claims and give a windfall to those who had claimed. Finally, the court decided that claiming class members could not use the unclaimed portion of the judgment to defray their legal expenses. Since Boeing could have a right to money that never was claimed, the court thought that awarding attorney's fees from the remaining funds might shift fees to the losing party in violation of the American rule reaffirmed in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). 2 Cir., 553 F.2d 812 (1977). 6 On the second remand, the District Court entered the judgment now at issue. The court first established the amount of Boeing's liability to the class as a whole. It provided that respondents, "in behalf of all members of the plaintiff class, . . . shall recover as their damages . . . the principal sum of $3,289,359 together with [prejudgment] interest. . . ." App. 40a.1 The court then fixed the amount that each member of the class could recover on a principal amount of $100 in debentures. Each individual recovery was to carry its proportionate share of the total amount allowed for attorney's fees, expenses, and disbursements.2 That share, the court declared, "shall bear the same ratio to all such fees, expenses and disbursements as such class member's recovery shall bear to the total recovery" awarded the class. Id., at 40a-41a. Finally, the court ordered Boeing to deposit the amount of the judgment into escrow at a commercial bank,3 and it appointed a Special Master to administer the judgment and pass on the validity of individual claims.4 The court retained jurisdiction pending implementation of its judgment. 7 Boeing appealed only one provision of the judgment. It claimed that attorney's fees could not be awarded from the unclaimed portion of the judgment fund for at least two reasons. First, the equitable doctrine that allows the assessment of attorney's fees against a common fund created by the lawyers' efforts was inapposite because the money in the judgment fund would not benefit those class members who failed to claim it. Second, because Boeing had a colorable claim for the return of the unclaimed money, awarding attorney's fees from those funds might violate the American rule against shifting fees to the losing party. Therefore, Boeing contended, the District Court should award attorney's fees from only the portion of the fund actually claimed by class members. A panel of the Court of Appeals agreed with Boeing, 573 F.2d 733 (1978), but the court en banc affirmed the District Court's judgment, 590 F.2d 433 (1978). 8 The Court of Appeals en banc found that each class member had a "present vested interest in the class recovery" and that each could collect his share of the judgment upon request. Thus, the court held, absentee class members had received a benefit within the meaning of the common-fund doctrine. Id., at 439. The court also found its holding consistent with the American rule. It noted that lawyers for the class would receive their fees "from the amount for which Boeing has already been held liable. There is no 'surcharge' on the defeated litigant." Id., at 441-442. We granted certiorari, 441 U.S. 942, 99 S.Ct. 2158, 60 L.Ed.2d 1043 (1979), and we now affirm. II 9 Since the decisions in Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882), and Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885), this Court has recognized consistently that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); cf. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). The common-fund doctrine reflects the traditional practice in courts of equity, Trustees v. Greenough, supra 105 U.S., at 532-537, and it stands as a well-recognized exception to the general principle that requires every litigant to bear his own attorney's fees, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S., at 257-258, 95 S.Ct., at 1621-1622. The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant's expense. See, e. g., Mills v. Electric Auto-Lite Co., 396 U.S., at 392, 90 S.Ct., at 625. Jurisdiction over the fund involved in the litigation allows a court to prevent this inequity by assessing attorney's fees against the entire fund, thus spreading fees proportionately among those benefited by the suit. See id., at 394, 90 S.Ct., at 626. 10 In Alyeska Pipeline Service Co. v. Wilderness Society, supra, we noted the features that distinguished our common-fund cases from cases where the shifting of fees was inappropriate. First, the classes of persons benefited by the lawsuits "were small in number and easily identifiable." 421 U.S., at 265, n. 39, 95 S.Ct., at 1625, n. 39. Second, "[t]he benefits could be traced with some accuracy . . . ." Ibid. Finally, "there was reason for confidence that the costs [of litigation] could indeed be shifted with some exactitude to those benefiting." Ibid. Those characteristics are not present where litigants simply vindicate a general social grievance. Id., at 263-267, and n. 39, 95 S.Ct., at 1624-1626, and n. 39. On the other hand, the criteria are satisfied when each member of a certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum judgment recovered on his behalf. Once the class representatives have established the defendant's liability and the total amount of damages, members of the class can obtain their share of the recovery simply by proving their individual claims against the judgment fund. This benefit devolves with certainty upon the identifiable persons whom the court has certified as members of the class. Although the full value of the benefit to each absentee member cannot be determined until he presents his claim, a fee awarded against the entire judgment fund will shift the costs of litigation to each absentee in the exact proportion that the value of his claim bears to the total recovery. See generally Dawson, Lawyers and Involuntary Clients in Public Interest Litigation, 88 Harv.L.Rev. 849, 916-922 (1975). 11 In this case, the named respondents have recovered a determinate fund for the benefit of every member of the class whom they represent. Boeing did not appeal the judgment awarding the class a sum certain.5 Nor does Boeing contend that any class member was uninjured by the company's failure adequately to inform him of his conversion rights. Thus, the damage to each class member is simply the difference between the redemption price of his debentures and the value of the common stock into which they could have been converted. To claim their logically ascertainable shares of the judgment fund, absentee class members need prove only their membership in the injured class. Their right to share the harvest of the lawsuit upon proof of their identity, whether or not they exercise it, is a benefit in the fund created by the efforts of the class representatives and their counsel. Unless absentees contribute to the payment of attorney's fees incurred on their behalves, they will pay nothing for the creation of the fund and their representatives may bear additional costs. The judgment entered by the District Court and affirmed by the Court of Appeals rectifies this inequity by requiring every member of the class to share attorney's fees to the same extent that he can share the recovery.6 Since the benefits of the class recovery have been "traced with some accuracy" and the costs of recovery have been "shifted with some exactitude to those benefiting," Alyeska Pipeline Service Co. v. Wilderness Society, supra, at 265, n. 39, 95 S.Ct., at 1625, n. 39, we conclude that the attorney's fee award in this case is a proper application of the common-fund doctrine. III 12 The common-fund doctrine, as applied in this case, is entirely consistent with the American rule against taxing the losing party with the victor's attorney's fees. See Alyeska Pipeline Service Co. v. Wilderness Society,supra, at 247, 95 S.Ct., at 1616. The District Court's judgment assesses attorney's fees against a fund awarded to the prevailing class. Since there was no appeal from the judgment that quantified Boeing's liability Boeing presently has no interest in any part of the fund.7 The members of the class, whether or not they assert their rights, are at least the equitable owners of their respective shares in the recovery. Any right that Boeing may establish to the return of money eventually unclaimed is contingent on the failure of absentee class members to exercise their present rights of possession.8 Although Boeing itself cannot be obliged to pay fees awarded to the class lawyers, its latent claim against unclaimed money in the judgment fund may not defeat each class member's equitable obligation to share the expenses of litigation. The judgment of the Court of Appeals is 13 Affirmed. 14 Mr. Justice REHNQUIST, dissenting. 15 In disposing of this case on the merits, the Court gives short shrift to the question of appealability, a threshold issue by no means free from doubt even under the most generous view of our decided cases. I have concluded from these cases, viewed in light of the longstanding policy of the federal judicial system against piecemeal appeals, that the judgment now before us lacks the finality required by 28 U.S.C. § 1291, and I would therefore remand this case to the Court of Appeals with instructions to dismiss Boeing's appeal. Exhibit "A" of the shortsightedness of the Court's sloughing off the issue of appealability as it does is the fact that the parties are obliged to refer to the present case not merely as "Van Gemert," but as "Van Gemert III." This case, which began in March 1966, has been appealed to the Court of Appeals for the Second Circuit three times, and now, after 14 years of litigation, this Court affirms the third decision of the Court of Appeals. 16 There is no doubt as to the appealability of the first of the three decisions of the District Court, since it dismissed respondents' complaint with prejudice. The second appeal was also by respondents from a determination by the District Court that respondents were not entitled to any prejudgment interest; this decision was also reversed by the Court of Appeals. Following this second remand, the District Court entered a "Judgment and Order" stating that Boeing was liable to respondent class in the amount of $3,289,359 plus interest, ordering Boeing to pay this amount into escrow, and indicating that respondents' attorneys could recover their fees "out of said total amount of this judgment." At this point, Boeing appealed for the first time, asserting that respondents' attorneys should collect their fees only out of that portion of the fund actually claimed. As noted by the Court, the Court of Appeals en banc affirmed this aspect of the District Court's order. 17 The novelty of the question posed by Boeing is attributable in large part to the historic prevalence of the "American rule," which generally prevents a court from requiring the losing party to pay the prevailing party's attorney's fees. In recent years, however, the proliferation of class actions and the enactment of various statutes modifying the American rule1 have multiplied the opportunities for recovering attorney's fees and have simultaneously spawned a great deal of litigation over assessment of those fees. These developments lend added significance to the procedural implications of our decisions in this area. 18 In the typical American-rule case, the federal judicial system, by statute and rule, has generally made a final order a prerequisite to appellate review. A judgment is not considered final, and therefore appealable, until the district court has completed all but the most ministerial acts. Arguably, litigation necessitating an award of attorney's fees should be treated no differently. It would be quite reasonable, I believe, to postpone appeal in such cases until the District Court had entered judgment not only on liability and damages, but also on whether and in what amount attorney's fees will be assessed. Cf. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976) (dismissing appeal from judgment of liability in Title VII action under Civil Rights Act of 1964 where requests for injunction, damages, and attorney's fees remained pending in the District Court). 19 For better or for worse, the little precedent that exists in this area has tended to deviate from such a sensible approach. This deviation has been particularly noticeable when the right to attorney's fees has been based on the existence of a "common fund" such as that discussed in the opinion of the Court. Beginning with Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882), the Court has evidenced a willingness to treat the division of the common fund as a separate piece of litigation for purposes of appeal. In Greenough, for example, this Court entertained an appeal from an order allowing a successful plaintiff bondholder to recover attorney's fees even though the original action remained pending in the trial court for purposes of administration. The Court stated that the award of fees, "though incidental to the [original] cause," was sufficiently "collateral," "distinct," and "independent," to be appealable in its own right. Id., at 531. 20 From Greenough it was an analytically short, though temporally long, step to the decision of the Court of Appeals for the Seventh Circuit in Swanson v. American Consumer Industries, Inc., 517 F.2d 555 (1975). In that shareholders' derivative suit, the District Court entered judgment in favor of plaintiffs and awarded damages. Seven months later it granted attorney's fees to prevailing counsel under an "extension" of Greenough. 517 F.2d, at 560. Two notices of appeal were filed from this latter order, one on behalf of plaintiffs challenging the amount of damages and the other on behalf of plaintiffs and their attorneys challenging the amount of attorney's fees. The Court of Appeals dismissed the appeal on the question of damages as untimely, reasoning that the District Court's determination of damages was final, and therefore appealable, upon entry of the first order. 21 Greenough and Swanson represent two sides of the same coin. If an attorney's attempt to secure fees from the common fund is "collateral" enough to support an independent appeal despite the continued pendency of the main litigation,2 then the judgment establishing the fact and amount of the defendant's liability in the main litigation should also support a separate appeal despite the continued pendency of a dispute over division of the fund between the beneficiaries and their attorneys.3 22 Implicit in this bifurcated approach to appealability in common-fund cases is a strict bifurcation of the issues that can be litigated in either appeal. Thus, this Court would not have permitted the trustees in Greenough to contest in their appeal the merits of the dispute that generated the common fund. Nor, I venture, would the Court of Appeals for the Seventh Circuit have allowed a timely appeal on the issue of damages to challenge the amount of attorney's fees assessed, an issue that was the subject of a later, separate appeal. In each case, appellant would be powerless to reach backward or forward from the "collateral" proceeding to the "merits" of the lawsuit. 23 But this is exactly what the Court permits Boeing to do in this case. Assuming, as seems likely, that the Greenough/Swanson model of bifurcated appealability will prevail, I have no doubt that Boeing could have appealed, at this stage of the proceedings, from the judgment that it was liable to the plaintiff class in the amount of $3,289,359 plus interest. But as the Court concedes, indeed stresses, Boeing has not challenged either the fact of liability or the amount. See ante, at 497-480, n. 5. Such an appeal must have appeared futile in light of Van Gemert I, 520 F.2d 1373 (1975), which established liability, and Van Gemert II, 553 F.2d 812 (1977), which established the precise amount of damages payable to each member of the class. Instead, Boeing relies on the "finality" of the District Court's judgment on the merits, the Swanson side of the coin, to prosecute an appeal on the division of the common fund, the Greenough side of the coin. As noted above, such crisscrossing of contentions is inconsistent with a bifurcated approach to appellate litigation in common-fund cases. 24 Even if Boeing is to be allowed to appeal under the "collateral order" rubric in this case, the order from which it appealed was not final even under that doctrine. Greenough itself noted that the trustees brought their appeal from "a final determination of the particular matter arising upon the complainant's petition for allowances. . . ." 105 U.S., at 531 (emphasis added). Similarly, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which formalized the "collateral order" doctrine presaged in Greenough, requires that the order appealed from be the "final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it." 337 U.S., at 546-547, 69 S.Ct., at 1225-1226 (emphasis added). In this case, however, that portion of the litigation involving the attorney's fees is still in its most nascent phase. We do not know, for example, when these fees are going to be assessed, how they will be calculated, or what will become of that portion of the fund that is neither claimed nor paid out in fees. 25 Nowhere does this lack of finality manifest itself more than in the Court's holding that Boeing has standing to litigate over the division of the spoils even though it may not have any continuing interest whatsoever in the money held in escrow.4 In allowing Boeing to base its appeal on a "colorable claim for the return of [any] excess," ante, at 481, n. 7, the Court comes dangerously close to assuming in a single phrase that Boeing has standing. At best this analysis is unnecessary, since final settlement of the conflicting claims to the fund would establish Boeing's standing once and for all. At worst it represents a dangerous dilution of the standing requirement. In any event, the anticipatory nature of the analysis necessary to reach the merits of Boeing's appeal buttresses the notion that the Court is using a dubious technique to gloss over a lack of finality. 26 The procedural implications of our decision today will, I fear, have a more far-reaching effect than the decision on the propriety of the application of the common-fund rule for allowing fees. Were I an attorney representing a party in common-fund litigation at a juncture similar to that encountered by Boeing prior to its appeal, I would be quite confused about the propriety of an immediate appeal, either on the merits of the main cause of action or on the details of an impending assessment of fees. Fearful that, by waiting for a "final order" in the strict sense, I might forfeit my right to appeal certain aspects of the litigation, cf. Swanson v. American Consumer Industries, Inc., I probably would err in favor of filing an immediate appeal on whatever aspects of the case were bothersome at that time.5 From the standpoint of the federal appellate courts, such uncertainty can only result in numerous interlocutory, precautionary appeals. 27 In sum, I believe that the District Court's order on the division of the "common fund" lacks the finality necessary to support Boeing's appeal, and would remand this matter to the Court of Appeals with instructions to dismiss the appeal. I therefore dissent. 1 The relevant paragraph of the District Court's judgment declares in full: "ORDERED, ADJUDGED AND DECREED that plaintiffs in behalf of all members of the plaintiff class, which consists of all holders on March 29, 1966 of 41/2% Convertible Subordinated Debentures of the Boeing Company who failed to exercise their conversion right before it terminated on March 29, 1966, shall recover as their damages herein from the defendants the principal sum of $3,289,359 together with interest thereon at the legal rates fixed by the State of New York, N.Y.C.P.L.R. § 5001(a) from March 9, 1966 to the date of this judgment, with costs to be taxed. . . ." App. 40a. 2 The class lawyers have requested fees totaling about $2 million. 573 F.2d 733, 735, n. 3 (1978) (panel opinion). 3 Interest on the principal sum of $3,289,359 from the conversion deadline to the date of judgment amounted to $2,459,647, bringing the judgment to $5,749,006. With income earned on investments and other additions, the fund now totals over $7 million. Brief for Special Master as Amicus Curiae 4-6. 4 The District Court gave the Special Master a broad mandate to "direct the parties in the necessary ministerial steps to effectuate the Judgment, receive all proofs of claim to participate in the Fund established by the Judgment, pass on the validity of same, direct the giving of notices to interested persons of hearings on disputed claims, conduct the necessary hearings, submit reports thereon and in general supervise the administration of the Judgment and decide all disputed questions of law and fact connected therewith subject to confirmation by the Court. . . ." App. 42a. In the year following his appointment, the Special Master mailed notices to debenture holders who could be identified and published notices in two national newspapers. By July 15, 1978, the Special Master had received claims accounting for $290,000 worth of the $1,544,300 in unconverted debentures. Brief for Special Master as Amicus Curiae 11. The District Court then extended the time for filing proofs of claims, and the Master renewed his efforts to locate holders of the remaining debentures. Further research in files kept by the trustee under the indenture agreement revealed the identity of additional debenture holders. A professional search firm endeavored to trace holders who had relocated. Banks and brokerage houses also were furnished with information that might help them to locate clients who had invested in the debentures. As of July 18, 1979, shortly before he filed his brief with this Court, the Master had received claims accounting for $706,600 worth of debentures or about 47% of the unconverted securities. Id., at 14. 5 Boeing contends that the judgment in this case was simply a procedural device ordering Boeing to pay into escrow its maximum potential liability to the class. The judgment will not be final, Boeing argues, until absentee class members have presented their individual claims. Thus, Boeing concludes, the judgment fund confers no benefit on class members who fail to claim against it. Brief for Petitioner 25-26, and n. *. We think that Boeing misreads the judgment. The District Court explicitly ordered that "plaintiffs in behalf of all members of the plaintiff class . . . shall recover as their damages herein from the defendants the principal sum of $3,289,359 together with interest. . . ." See n. 1, supra. Nothing in the court's order made Boeing's liability for this amount contingent upon the presentation of individual claims. Thus, we need not decide whether a class-action judgment that simply requires the defendant to give security against all potential claims would support a recovery of attorney's fees under the common-fund doctrine. We also think that Boeing's arguments come too late. Although the District Court did not fix the amount of attorney's fees to be assessed against absentee class members, its judgment terminated the litigation between Boeing and the class concerning the extent of Boeing's liability. See Swanson v. American Consumer Industries, Inc., 517 F.2d 555, 559-561 (CA7 1975). This is not a case, like Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976), where a prayer for attorney's fees against an opposing party remains unanswered. See Richerson v. Jones, 551 F.2d 918, 921-922 (CA3 1977). Thus, the judgment awarding the class a fixed recovery was final and appealable. Since Boeing did not appeal it, we cannot now consider whether the judgment was in error. 6 Since an award of attorney's fees under the common-fund doctrine simply relieves claiming class members of costs incurred for the benefit of others, we see no merit in Boeing's contention that the award amounts to a "fluid class" recovery. See Tr. of Oral Arg. 20. Here, as in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172, n. 10, 94 S.Ct. 2140, 2150, n. 10, 40 L.Ed.2d 732 (1974), we express no opinion on the validity of judgments permitting such recoveries. 7 Although we recognize that this 14-year-old case has had a fractured career in the courts, we do not agree with Mr. Justice REHNQUIST's dissenting view that the judgment before us lacks finality. Post, at 482. The District Court's judgment first ordered Boeing to pay a specified sum to the entire class and then assessed undetermined attorney's fees against the entire fund created by the judgment. The judgment on the merits stripped Boeing of any present interest in the fund. Thus, Boeing had no cognizable interest in further litigation between the class and its lawyers over the amount of the fees ultimately awarded from money belonging to the class. But Boeing did have an interest, arising from its colorable claim for the return of excess money, in whether attorney's fees could be assessed against the entire fund rather than against the portion actually claimed. Since the District Court's order assessed attorney's fees against the entire fund, it was a final judgment on the only issue in which Boeing still had an interest. In the peculiar circumstances of this case, Boeing could secure review of the allocation of fees only by appealing from this adverse judgment. 8 The Court of Appeals did not consider the ultimate disposition of whatever money may remain in the fund after the District Court enforces a deadline for the presentation of individual claims. 590 F.2d 433, 440, n. 17 (1978). We likewise express no opinion on that question. 1 See, e. g., 5 U.S.C. § 552(a)(4)(E) (permitting award of attorney's fees in actions brought under Freedom of Information Act); 15 U.S.C. § 1691e(d) (suits under Equal Credit Opportunity Act); 42 U.S.C. § 2000e-5(k) (Title VII suits under Civil Rights Act of 1964); 42 U.S.C. § 1988 (civil-rights suits). 2 See also Sprague v. Ticonic National Bank, 307 U.S. 161, 169, 59 S.Ct. 777, 781, 83 L.Ed. 1184 (1939) (claim for fees out of common fund "sufficiently different" from parent claim to support separate appeal); Preston v. United States, 284 F.2d 514 (CA9 1960) (attorney's appeal from District Court's refusal to award fees on common-fund theory); Angoff v. Goldfine, 270 F.2d 185 (CA1 1959) (attorney's appeal from District Court's refusal to grant him fees out of settlement fund). 3 Outside the common-fund context, the consensus in the lower courts over the permissibility of bifurcated appeals dissolves. Two Courts of Appeals, including the Seventh Circuit, appear to have carried the Greenough/Swanson approach over into cases where one party recovers attorney's fees directly from an opposing party. In Hidell v. International Diversified Investments, 520 F.2d 529 (CA7 1975), for example, appellee had brought suit under the securities laws. The District Court entered a judgment granting appellee an injunction, damages, and "reasonable" attorney's fees. The Court of Appeals, citing Swanson, allowed the defendant to appeal the merits of the dispute prior to the actual determination of those fees. In Lowe v. Pate Stevedoring Co., 595 F.2d 256, 257 (CA5 1979), the plaintiff had prevailed on the merits of an unfair-representation suit against his union. The District Court granted plaintiff's attorney fees as the result of the union's "bad faith," but denied plaintiff's attorney a lien against the union to secure his fee. The Court of Appeals, relying on Swanson, Preston v. United States, supra, and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), allowed the attorney to prosecute his appeal even though his client's prayer for reinstatement remained pending in the District Court. To the extent that the Fifth Circuit treats such an appeal as severable from the main cause of action, it might also treat an appeal from the main litigation as severable from the attorney's-fees proceeding. Two other Courts of Appeals have rejected the bifurcated model of appealability in noncommon-fund cases. In Richerson v. Jones, 551 F.2d 918, 922 (1977), the Third Circuit confronted an appeal by the United States from a judgment of liability in a discrimination suit. The District Court's order had awarded plaintiff promotion, backpay, and interest, but had not yet ruled on plaintiff's request for attorney's fees. In holding that the United States had not appealed from a final order, the Court of Appeals relied upon Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976), and distinguished Swanson as a case where plaintiff was not seeking to collect fees from his adversary. Employing similar analysis, the Second Circuit twice has held that, where the obligation to pay an opposing party's attorney's fees arises out of an agreement that is also the subject of the original litigation, the attorney's-fees issue is not sufficiently collateral to allow appeal from a judgment on the merits prior to a determination of the attorney's fees. See Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468 (1969) (suit for breach of subordination agreement); Union Tank Car Co. v. Isbrandtsen, 416 F.2d 96 (1969) (suit to enforce settlement agreement). Judge Friendly has attempted to reconcile Giesow with the common-fund cases. See Cinerama, Inc. v. Sweet Music, S. A., 482 F.2d 66, 70, n. 2 (CA2 1973). See also Union Tank Car Co. v. Isbrandtsen, supra, at 97. This overview is offered only to illustrate the complexity of this issue. Perhaps all these cases can be reconciled in some principled manner; if not, it is only a matter of time before this Court will have to try its hand at an issue that obviously has been perplexing other federal courts. In the meantime, I believe that we should tread quite carefully in this area. 4 Boeing's only interest in the funds now held in escrow is its assertion that the unclaimed portion of the judgment eventually will revert to it. But respondents have argued with some force that the unclaimed funds will eventually escheat to the State of New York. See N.Y. Aband. Prop. Law § 1200 (McKinney 1944). In fact, the Attorney General of New York already has presented such a claim to the District Court. See Brief for Respondents filed by Stuart D. Wechsler 23. If the Attorney General and respondents are correct, then Boeing has no more standing to press its appeal than would a losing defendant have standing to contest the division of an award between plaintiff and his attorney pursuant to a contingent-fee arrangement. Although respondents have not challenged Boeing's standing, we are obligated to consider the issue sua sponte, if necessary. See, e. g., Juidice v. Vail, 430 U.S. 327, 331, 97 S.Ct. 1211, 1215, 51 L.Ed.2d 376 (1977). 5 The potential for confusion is even greater outside the context of common-fund litigation. See n. 3, supra.

56

444 U.S. 505 100 S.Ct. 992 62 L.Ed.2d 701 Gentry CROWELL, Secretary of State of Tennessee, et al.v.Richard MADER et al No. 78-1780 Supreme Court of the United States February 19, 1980 PER CURIAM. 1 The petition for rehearing is granted. 2 In Kopald v. Carr, 343 F.Supp. 51 (MD Tenn.1972), the District Court applied this Court's earlier holding in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), to invalidate two senatorial districting plans. That decision resulted in the formulation of a so-called court ordered "Kopald Plan." That plan was superseded by a 1973 legislative plan. 3 In this litigation the District Court invalidated the 1973 legislative plan. It enjoined the defendants from conducting any elections pursuant to that plan and retained jurisdiction to review whatever substitute the Tennessee General Assembly might enact prior to June 1, 1979, or, if necessary, to reinstate the 1972 "Kopald Plan." The court further ordered a hearing to award fees to plaintiffs' counsel. 4 In response to the State's appeal to this Court, appellees pointed out that the legislature had enacted a new plan effective on June 6, 1979, argued that the controversy over the validity of the 1973 legislative plan had therefore become moot, and requested that the appeal therefore be dismissed. This Court, following a practice that is appropriate when an entire case has become moot but which is inappropriate when only the issues raised on appeal have been resolved, entered an order directing that the judgment of the District Court be vacated and that the entire action be dismissed as moot. 444 U.S. 806, 100 S.Ct. 25, 62 L.Ed.2d 18. 5 The recent legislation did not moot the entire case, but only the issues raised on appeal. Appellees may still wish to attack the newly enacted legislation or apply for attorney's fees. We therefore vacate our prior order. In lieu thereof, we direct that the judgment of the District Court be vacated without prejudice to such further proceedings in the District Court as may be appropriate. See Diffenderfer v. Central Baptist Church, 404 U.S. 412, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972). 6 It is so ordered.

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444 U.S. 646 100 S.Ct. 840 63 L.Ed.2d 94 COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al., Appellants,v.Edward V. REGAN, etc., et al. No. 78-1369. Argued Nov. 27, 1979. Decided Feb. 20, 1980. Syllabus After a New York statute that appropriated public funds to reimburse both church-sponsored and secular nonpublic schools for performing various services mandated by the State, including the administration, grading, and reporting of the results of tests, both state-prepared and teacher-prepared tests, had been held to be violative of the Establishment Clause of the First Amendment in Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736, the New York Legislature enacted a new statute directing payment to nonpublic schools of the costs incurred by them in complying with certain state-mandated requirements, including requirements as to testing (pupil evaluation, achievement, and scholarship and college qualification tests) and as to reporting and recordkeeping. The new statute, unlike the earlier version, also provides a means by which state funds are audited, thus ensuring that only the actual costs incurred in providing the covered secular services are reimbursed out of state funds. The District Court ultimately upheld the new statute. Held : The New York statute does not violate the First and Fourteenth Amendments. Pp. 653-662. (a) A legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion. Pp. 653. (b) The New York statute has the secular purpose of providing educational opportunity of a quality that will prepare New York citizens for the challenges of American life. The statutory plan calls for tests that are prepared by the State and administered on the premises by personnel of the nonpublic schools, which, however, have no control over the contents of the tests. Although some of the tests are graded by nonpublic school personnel, in view of the nature of the tests, which deal only with secular academic matters, the grading by nonpublic school employees affords no control to the school over the outcome of any of the tests, and there is no substantial risk that the examinations can be used for religious educational purposes. While the recordkeeping and reporting services for which the State reimburses the nonpublic school pertain to furnishing information regarding the student body, faculty, support staff, physical facilities, curriculum, and student attendance, and thus are related to the educational program, nevertheless they are not part of the teaching process and cannot be used to foster an ideological outlook. Thus, reimbursement for the costs of so complying with state law has primarily a secular, rather than a religious purpose and effect. Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714, controlling. Pp. 654-657. (c) The New York statute is not invalid simply because it provides for direct cash reimbursement to the nonpublic school for administering the state-prescribed examinations and for grading some of them. Grading the secular tests furnished by the State is a function that has a secular purpose and primarily a secular effect, and this is not changed simply because the State pays the school for performing the grading function rather than paying state employees or some independent service to perform the task. The same results obtain as to reimbursement for the recordkeeping and reporting functions because they also have neither a religious purpose nor a primarily religious effect. Pp. 657-659. (d) The New York law provides ample safeguards against excessive or misdirected reimbursement. The services for which the private schools are reimbursed are discrete and clearly identifiable, and the statutory reimbursement process is straightforward and susceptible to the routinization that characterizes most reimbursement schemes. On its face, therefore, the New York plan suggests no excessive entanglement, and the bad faith upon which any future excessive entanglement would be predicated will not be read into the plan as an inevitability. Pp. 659-661. (e) The decision in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217, is not to be interpreted as holding that any aid to even secular educational functions of a sectarian school is forbidden, or, more broadly still, that any aid to a sectarian school is suspect since its religious teaching is so pervasively intermixed with each of its activities. The District Court in the instant case properly put the Meek case and the Wolman case, supra, together and sustained the reimbursements involved here because it had been shown with sufficient clarity that they would serve the State's legitimate secular ends without any appreciable risk of being used to transmit or teach religious views. Pp. 661-662. D.C., 461 F.Supp. 1123, affirmed. Leo Pfeffer, Brooklyn, N. Y., for appellants. Shirley Adelson Siegel, Albany, for State appellees. Richard E. Nolan, New York City, for intervenor schools. Mr. Justice WHITE delivered the opinion of the Court. 1 The issue in this case is the constitutionality under the First and Fourteenth Amendments of the United States Constitution of a New York statute authorizing the use of public funds to reimburse church-sponsored and secular nonpublic schools for performing various testing and reporting services mandated by state law. The District Court sustained the statute. Committee for Public Education v. Levitt, 461 F.Supp. 1123 (1978). We noted probable jurisdiction, 442 U.S. 928, 99 S.Ct. 2856, 61 L.Ed.2d 295 (1979), and now affirm the District Court's judgment. 2 * In 1970, the New York Legislature appropriated public funds to reimburse both church-sponsored and secular nonpublic schools for performing various services mandated by the State. The most expensive of these services was the "administration, grading and the compiling and reporting of the results of tests and examinations." 1970 N.Y.Laws, ch. 138, § 2. Covered tests included both state-prepared examinations and the more common and traditional teacher-prepared tests. Although the legislature stipulated that "[n]othing contained in this act shall be construed to authorize the making of any payment under this act for religious worship or instruction," § 8, the statute did not provide for any state audit of school financial records that would ensure that public funds were used only for secular purposes. 3 In Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973) (Levitt I ), the Court struck down this enactment as violative of the Establishment Clause.1 The majority focused its concern on the statute's reimbursement of funds spent by schools on traditional teacher-prepared tests. The Court was troubled that, "despite the obviously integral role of such testing in the total teaching process, no attempt is made under the statute, and no means are available, to assure that internally prepared tests are free of religious instruction." Id., at 480, 93 S.Ct., at 2819. It was not assumed that nonpublic school teachers would attempt in bad faith to evade constitutional requirements. Rather, the Court simply observed that "the potential for conflict 'inheres in the situation,' and because of that the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination." Ibid., quoting Lemon v. Kurtzman, 403 U.S. 602, 617, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745 (1971). Because the State failed to provide the required assurance, the challenged statute was deemed to constitute an impermissible aid to religion. 4 The Court distinguished its earlier holdings in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), on grounds that the state aid upheld in those cases, in the form of bus rides and loaned secular textbooks for sectarian schoolchildren, was "of a substantially different character" from that presented in Levitt I. Levitt I, supra, 413 U.S., at 481, 93 S.Ct., at 2819. Teacher-prepared tests were deemed by the Court to be an integral part of the teaching process. But obviously so are textbooks an integral part of the teaching process. The crucial feature that distinguished tests, according to the Court, was that, " '[i]n terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not.' " 413 U.S., at 481, 93 S.Ct., at 2819, quoting Lemon v. Kurtzman, supra, 403 U.S., at 617, 91 S.Ct., at 2113. Thus, the inherent teacher discretion in devising, presenting, and grading traditional tests, together with the failure of the legislature to provide for a method of auditing to ensure that public funds would be spent exclusively on secular services, disabled the enactment from withstanding constitutional scrutiny.2 5 Almost immediately the New York Legislature attempted to eliminate these defects from its statutory scheme. A new statute was enacted in 1974,3 and it directed New York's Commissioner of Education to apportion and to pay to nonpublic schools the actual costs incurred as a result of compliance with certain state-mandated requirements, including 6 "the requirements of the state's pupil evaluation program, the basic educational data system, regents examinations, the statewide evaluation plan, the uniform procedure for pupil attendance reporting, and other similar state prepared examinations and reporting procedures." 1974 N.Y.Laws, ch. 507, § 3. 7 Of signal interest and importance in light of Levitt I, the new scheme does not reimburse nonpublic schools for the preparation, administration, or grading of teacher-prepared tests. Further, the 1974 statute, unlike the 1970 version struck down in Levitt I, provides a means by which payments of state funds are audited, thus ensuring that only the actual costs incurred in providing the covered secular services are reimbursed out of state funds. § 7. 8 Although the new statutory scheme was tailored to comport with the reasoning in Levitt I, the District Court invalidated the enactment with respect to both the tests and the reporting procedure. Committee for Public Education v. Levitt, 414 F.Supp. 1174 (1976) (Levitt II ). The District Court understood the decision in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), to require this result. In Meek, decided after Levitt I, this Court held unconstitutional two Pennsylvania statutes insofar as they provided auxiliary services and instructional material and equipment apart from textbooks to nonpublic schools in the State, most of which were sectarian. The Court ruled that in "religion-pervasive" institutions, secular and religious education are so "inextricably intertwined" that "[s]ubstantial aid to the educational function of such schools . . . necessarily results in aid to the sectarian school enterprise as a whole" and hence amounts to a forbidden establishment of religion. 421 U.S., at 366, 95 S.Ct., at 1763-1764. 9 Levitt II was appealed to this Court. We vacated the District Court's judgment and remanded the case in light of our decision in Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977). On remand the District Court ruled that under Wolman "state aid may be extended to [a sectarian] school's educational activities if it can be shown with a high degree of certainty that the aid will only have secular value of legitimate interest to the State and does not present any appreciable risk of being used to aid transmission of religious views." 461 F.Supp., at 1127. Applying this "more flexible concept," ibid., the District Court concluded that New York's statutory scheme of reimbursement did not violate the Establishment Clause. 10 Our jurisdiction to review the District Court's judgment lies under 28 U.S.C. § 1253. II 11 Under the precedents of this Court a legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion. See Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748, 96 S.Ct. 2337, 2348, 49 L.Ed.2d 179 (1976); Committee for Public Education v. Nyquist, 413 U.S. 756, 772-773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973); Lemon v. Kurtzman, 403 U.S., at 612-613, 91 S.Ct., at 2111. 12 In Wolman v. Walter, supra, this Court reviewed and sustained in relevant part an Ohio statutory scheme that authorized, inter alia, the expenditure of state funds 13 "[t]o supply for use by pupils attending nonpublic schools within the district such standardized tests and scoring services as are in use in the public schools of the state." Ohio Rev.Code Ann. § 3317.06(J) (Supp.1976). 14 We held that this provision, which was aimed at providing the young with an adequate secular education, reflected a secular state purpose. As the opinion of Mr. Justice BLACKMUN stated, "[t]he State may require that schools that are utilized to fulfill the State's compulsory-education requirement meet certain standards of instruction, . . . and may examine both teachers and pupils to ensure that the State's legitimate interest is being fulfilled." Wolman v. Walter, supra, 433 U.S., at 240, 97 S.Ct., at 2601. See Levitt I, 413 U.S., at 479-480, n. 7, 93 S.Ct., at 2819, n. 7; Lemon v. Kurtzman, supra, 403 U.S., at 614, 91 S.Ct., at 2112. Mr. Justice BLACKMUN further explained that under the Ohio provision the nonpublic school did not control the content of the test or its result. This "serves to prevent the use of the test as a part of religious teaching, and thus avoids that kind of direct aid to religion found present in Levitt [I]." Wolman v. Walter, 433 U.S., at 240, 97 S.Ct., at 2601. The provision of testing services hence did not have the primary effect of aiding religion. Ibid. It was also decided that "the inability of the school to control the test eliminates the need for the supervision that gives rise to excessive entanglement." Id., at 240-241, 97 S.Ct., at 2601-2602. We thus concluded that the Ohio statute, insofar as it concerned examinations, passed our Establishment Clause tests. III 15 We agree with the District Court that Wolman v. Walter controls this case. Although the Ohio statute under review in Wolman and the New York statute before us here are not identical, the differences are not of constitutional dimension. Addressing first the testing provisions, we note that here, as in Wolman, there is clearly a secular purpose behind the legislative enactment: "[T]o provide educational opportunity of a quality which will prepare [New York] citizens for the challenges of American life in the last decades of the twentieth century." 1974 N.Y.Laws, ch. 507, § 1. Also like the Ohio statute, the New York plan calls for tests that are prepared by the State and administered on the premises by nonpublic school personnel. The nonpublic school thus has no control whatsoever over the content of the tests. The Ohio tests, however, were graded by the State; here there are three types of tests involved, one graded by the State and the other two by nonpublic school personnel, with the costs of the grading service, as well as the cost of administering all three tests, being reimbursed by the State. In view of the nature of the tests, the District Court found that the grading of the examinations by nonpublic school employees afforded no control to the school over the outcome of any of the tests. 16 The District Court explained that the state-prepared tests are primarily of three types: pupil evaluation program (PEP) tests, comprehensive ("end-of-the-course") achievement tests, and Regents Scholarship and College Qualifications Tests (RSCQT). 461 F.Supp., at 1125. Each of the tests addresses a secular academic subject; none deals with religious subject matter.4 The RSCQT examinations are graded by State Education Department personnel, and the District Court correctly concluded that "the risk of [RSCQT examinations] being used for religious purposes through grading is non-existent." Id., at 1128. The PEP tests, administered universally in grades 3 and 6 and optionally in grade 9, are graded by nonpublic school employees, but they "consist entirely of objective, multiple-choice questions, which can be graded by machine and, even if graded by hand, afford the schools no more control over the results than if the tests were graded by the State." Ibid. The comprehensive tests, based on state courses of study for use in grades 9 through 12, are also graded on the premises by school employees, but "consist largely or entirely of objective questions with multiple-choice answers." Id., at 1125. Even though some of the comprehensive tests may include an essay question or two, ibid., the District Court found that the chance that grading the answers to state-drafted questions in secular subjects could or would be used to gauge a student's grasp of religious ideas was "minimal," especially in light of the "complete" state procedures designed to guard against serious inconsistencies in grading and any misuse of essay questions. Id., at 1128-1129. These procedures include the submission of completed and graded comprehensive tests to the State Department of Education for review off the school premises. 17 We see no reason to differ with the factual or legal characterization of the testing procedure arrived at by the District Court. As in Wolman v. Walter, 433 U.S., at 240, 97 S.Ct., at 2601, "[t]he nonpublic school does not control the content of the test or its result"; and here, as in Wolman, this factor "serves to prevent the use of the test as a part of religious teaching," ibid., thus avoiding the kind of direct aid forbidden by the Court's prior cases. The District Court was correct in concluding that there was no substantial risk that the examinations could be used for religious educational purposes. 18 The District Court was also correct in its characterization of the recordkeeping and reporting services for which the State reimburses the nonpublic school. Under the New York law, "[e]ach year, private schools must submit to the State a Basic Educational Data System (BEDS) report. This report contains information regarding the student body, faculty, support staff, physical facilities, and curriculum of each school. Schools are also required to submit annually a report showing the attendance record of each minor who is a student at the school." 461 F.Supp., at 1126. Although recordkeeping is related to the educational program, the District Court characterized it and the reporting function as "ministerial [and] lacking ideological content or use." Id., at 1130. These tasks are not part of the teaching process and cannot "be used to foster an ideological outlook." Ibid. Reimbursement for the costs of so complying with state law, therefore, has primarily a secular, rather than a religious, purpose and effect.5 IV 19 The New York statute, unlike the Ohio statute at issue in Wolman, provides for direct cash reimbursement to the nonpublic school for administering the state-prescribed examinations and for grading two of them. We agree with the District Court that such reimbursement does not invalidate the New York statute. If the State furnished state-prepared tests, thereby relieving the nonpublic schools of the expense of preparing their own examinations, but left the grading of the tests to the schools, and if the grading procedures could be used to further the religious mission of the school, serious Establishment Clause problems would be posed under the Court's cases, for by furnishing the tests it might be concluded that the State was directly aiding religious education. But as we have already concluded, grading the secular tests furnished by the State in this case is a function that has a secular purpose and primarily a secular effect. This conclusion is not changed simply because the State pays the school for performing the grading function. As the District Court observed, "[p]utting aside the question of whether direct financial aid can be administered without excessive entanglement by the State in the affairs of a sectarian institution, there does not appear to be any reason why payments to sectarian schools to cover the cost of specified activities would have the impermissible effect of advancing religion if the same activities performed by sectarian school personnel without reimbursement but with State-furnished materials have no such effect." 461 F.Supp., at 1129. 20 A contrary view would insist on drawing a constitutional distinction between paying the nonpublic school to do the grading and paying state employees or some independent service to perform that task, even though the grading function is the same regardless of who performs it and would not have the primary effect of aiding religion whether or not performed by nonpublic school personnel. In either event, the nonpublic school is being relieved of the cost of grading state-required, state-furnished examinations. We decline to embrace a formalistic dichotomy that bears so little relationship either to common sense or to the realities of school finance. None of our cases requires us to invalidate these reimbursements simply because they involve payments in cash. The Court "has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends." Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973).6 Because the recordkeeping and reporting functions also have neither a religious purpose nor a primarily religious effect, we reach the same results with respect to the reimbursements for these services. 21 Of course, under the relevant cases the outcome would likely be different were there no effective means for insuring that the cash reimbursements would cover only secular services. See Levitt , 413 U.S., at 480, 93 S.Ct., at 2819; Committee for Public Education v. Nyquist, 413 U.S., at 774, 93 S.Ct., at 2966; Lemon v. Kurtzman, 403 U.S., at 619-622, 91 S.Ct., at 2114-2116. But here, as we shall see, the New York law provides ample safeguards against excessive or misdirected reimbursement. V 22 The District Court recognized that "[w]here a state is required in determining what aid, if any, may be extended to a sectarian school, to monitor the day-to-day activities of the teaching staff, to engage in onerous, direct oversight, or to make on-site judgments from time to time as to whether different school activities are religious in character, the risk of entanglement is too great to permit governmental involvement." 461 F.Supp., at 1130. After examining the New York statute and its operation, however, the District Court concluded that "[t]he activities subsidized under the Statute here at issue . . . do not pose any substantial risk of such entanglement." Ibid. (footnote omitted). 23 The District Court described the process of reimbursement: 24 "Schools which seek reimbursement must 'maintain a separate account or system of accounts for the expenses incurred in rendering' the reimbursable services, and they must submit to the N.Y. State Commissioner of Education an application for reimbursement with additional reports and documents prescribed by the Commissioner. . . . Reimbursable costs include proportionate share of the teachers' salaries and fringe benefits attributable to administration of the examinations and reporting of State-required data on pupil attendance and performance, plus the cost of supplies and other contractual expenditures such as data processing services. Applications for reimbursement cannot be approved until the Commissioner audits vouchers or other documents submitted by the schools to substantiate their claims. . . . The Statute further provides that the State Department of Audit and Control shall from time to time inspect the accounts of recipient schools in order to verify the cost to the schools of rendering the reimbursable services. If the audit reveals that a school has received an amount in excess of its actual costs, the excess must be returned to the State immediately. . . ." Id., at 1126, quoting 1974 N.Y.Laws, ch. 507. 25 We agree with the District Court that "[t]he services for which the private schools would be reimbursed are discrete and clearly identifiable." 461 F.Supp., at 1131.7 The reimbursement process, furthermore, is straightforward and susceptible to the routinization that characterizes most reimbursement schemes. On its face, therefore, the New York plan suggests no excessive entanglement, and we are not prepared to read into the plan as an inevitability the bad faith upon which any future excessive entanglement would be predicated.8 VI 26 It is urged that the District Court judgment is unsupportable under Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), which is said to have held that any aid to even secular educational functions of a sectarian school is forbidden, or more broadly still, that any aid to a sectarian school is suspect since its religious teaching is so pervasively intermixed with each and every one of its activities. Brief for Appellants 9-11. The difficulty with this position is that a majority of the Court, including the author of Meek v. Pittenger, upheld in Wolman a state statute under which the State, by preparing and grading tests in secular subjects, relieved sectarian schools of the cost of these functions, functions that they otherwise would have had to perform themselves and that were intimately connected with the educational processes. Yet the Wolman opinion at no point suggested that this holding was inconsistent with the decision in Meek. Unless the majority in Wolman was silently disavowing Meek, in whole or in part, that case was simply not understood by this Court to stand for the broad proposition urged by appellants and espoused by the District Court in Levitt II. 27 That Meek was understood more narrowly was suggested by Mr. Justice POWELL in his separate opinion in Wolman : "I am not persuaded," he said, "nor did Meek hold, that all loans of secular instructional material and equipment" inescapably have the effect of direct advancement of religion. 433 U.S., at 263, 97 S.Ct., at 2613-2614. And obviously the testing services furnished by the State in Wolman were approved on the premise that those services did not and could not have the primary effect of advancing the sectarian aims of the nonpublic schools. With these indicators before it, the District Court properly put the two cases together and sustained the reimbursements involved here because it had been shown with sufficient clarity that they would serve the State's legitimate secular ends without any appreciable risk of being used to transmit or teach religious views. 28 This is not to say that this case, any more than past cases, will furnish a litmus-paper test to distinguish permissible from impermissible aid to religiously oriented schools. But Establishment Clause cases are not easy; they stir deep feelings; and we are divided among ourselves, perhaps reflecting the different views on this subject of the people of this country. What is certain is that our decisions have tended to avoid categorical imperatives and absolutist approaches at either end of the range of possible outcomes. This course sacrifices clarity and predictability for flexibility, but this promises to be the case until the continuing interaction between the courts and the States—the former charged with interpreting and upholding the Constitution and the latter seeking to provide education for their youth—produces a single, more encompassing construction of the Establishment Clause. The judgment of the District Court is 29 Affirmed. 30 Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 31 The Court in this case, I fear, takes a long step backwards in the inevitable controversy that emerges when a state legislature continues to insist on providing public aid to parochial schools. 32 I thought that the Court's judgments in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), and in Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) (which the Court concedes, ante, at 654, is the controlling authority here), at last had fixed the line between that which is constitutionally appropriate public aid and that which is not. The line necessarily was not a straight one. It could not be, when this Court, on the one hand, in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), by a 5-4 vote, decided that there was no barrier under the First and Fourteenth Amendments to parental reimbursement of the cost of fares for the transportation of children attending parochial schools, and in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), by a 6-3 vote, ruled that New York's lending of approved textbooks to students in private secondary schools was not violative of those Amendments, and yet, on the other hand, in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), struck down, as violative of the Religion Clauses, statutes that, respectively, would have supplemented nonpublic school teachers' salaries and would have authorized the "purchase" of certain "secular educational services" from nonpublic schools, and also in Levitt v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973) (Levitt I ), struck down New York's previous attempt to reimburse nonpublic schools for the expenses of tests and examinations. See also Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), where the Court nullified New York's financial aid programs for "maintenance and repair" of facilities and equipment, a tuition reimbursement plan, and tax relief for parents who did not qualify for tuition reimbursement, and Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973), where the Court ruled invalid a state plan for parental reimbursement of a portion of nonpublic school tuition expenses. And see Roemer v. Maryland Public Works Bd., 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976). 33 But, I repeat, the line, wavering though it may be, was indeed drawn in Meek and in Wolman, albeit with different combinations of Justices, those who perceive no barrier under the First and Fourteenth Amendments and who would rule in favor of almost any aid a state legislature saw fit to provide, on the one hand, and those who perceive a broad barrier and would rule against aid of almost any kind, on the other hand, in turn joining Justices in the center on these issues to make order and a consensus out of the earlier decisions. Now, some of those who joined in Lemon, Levitt I, Meek, and Wolman in invalidating depart and validate. I am able to attribute this defection only to a concern about the continuing and emotional controversy and to a persuasion that a good-faith attempt on the part of a state legislature is worth a nod of approval. 34 * In order properly to analyze the amended school aid plan that the New York Legislature produced in response to its defeat in Levitt I, it is imperative, it seems to me, to examine the statute's operational details with great precision and with fewer generalities than the Court does today. One should do more than give a passing glance at selected provisions of the statute, and one should not ignore the considerations that prompted the three-judge District Court initially and unanimously to hold New York's revised plan to be unconstitutional, Committee for Public Education v. Levitt, 414 F.Supp. 1174 (SDNY 1976) (Levitt II ) and that prompted Judge Ward, in his persuasive dissent in Levitt III, Committee for Public Education v. Levitt, 461 F.Supp. 1123, 1131 (SDNY 1978), after our remand, to differ so vigorously with his two colleagues who meanwhile changed their minds, mistakenly in my view. II 35 The Court, ante, at 653, and all three judges of the District Court, 461 F.Supp., at 1126, 1131, n. 1, are correct, of course, in recognizing that the "mode of analysis for Establishment Clause questions is defined by the three-part test that has emerged from the Court's decisions." Wolman v. Walter, 433 U.S., at 235-236, 97 S.Ct., at 2599 (plurality opinion). To pass constitutional muster under this test, the New York statute now challenged, Chapter 507, 1974 N.Y.Laws, as amended, "must have a secular legislative purpose, must have a principal or primary effect that neither advances nor inhibits religion, and must not foster an excessive government entanglement with religion." 433 U.S., at 236, 97 S.Ct., at 2599. 36 I have no trouble in agreeing with the Court that Chapter 507 manifests a clear secular purpose. See Levitt I, 413 U.S., at 479, n. 7, 93 S.Ct., at 2819, n. 7. I therefore would evaluate Chapter 507 under the two remaining inquiries of the three-part test. 37 In deciding whether Chapter 507 has an impermissible primary effect of advancing religion, or whether it fosters excessive government entanglement with sectarian affairs, one must keep in focus the nature of the assistance prescribed by the New York statute. The District Court found that $8-10 million annually would be expended under Chapter 507, with the great majority of these funds going to sectarian schools to pay for personnel costs associated with attendance reporting. The court found that such payments would amount to from 1% to 5.4% of the personnel budget of an individual religious school receiving assistance under Chapter 507. Moreover, Chapter 507 provides direct cash payments by the State of New York to religious schools, as opposed to providing services or providing cash payments to third parties who have rendered services. And the money paid sectarian schools under Chapter 507 is designated to reimburse costs that are incurred by religious schools in order to meet basic state testing and reporting requirements, costs that would have been incurred regardless of the availability of reimbursement from the State. 38 This direct financial assistance provided by Chapter 507 differs significantly from the types of state aid to religious schools approved by the Court inWolman v. Walter. For example, in Wolman the Court approved that portion of the Ohio statute that provided to religious schools the standardized tests and scoring services furnished to public schools. But, unlike New York's Chapter 507, Ohio's statute provided only the tests themselves and scoring by employees of neutral testing organizations. It did not authorize direct financial aid of any type to religious schools. Wolman v. Walter, 433 U.S., at 238-239, and n. 7, 97 S.Ct., at 2601 n. 7 (plurality opinion). 39 Similarly, the other forms of assistance upheld in Wolman did not involve direct cash assistance. Rather, the Court approved the State's providing sectarian school students therapeutic, remedial, and guidance programs administered by public employees on public property. It also approved certain public health services furnished by public employees to religious school pupils, even though administered in part on the sectarian premises, on the basis of its recognition in a number of cases, see, e. g., Meek v. Pittenger, 421 U.S., at 364, 368, n. 17, 95 S.Ct., at 1764, n. 17, that provision of health services to all schoolchildren does not advance religion so as to contravene the Establishment Clause. 433 U.S., at 241-248, 97 S.Ct., at 2601-2605. And it upheld the lending by Ohio of textbooks to pupils under the "unique presumption," id., at 252, n. 18, 97 S.Ct., at 2607, n. 18, created by Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and reaffirmed since that time. E. g., Meek v. Pittenger, 421 U.S., at 359-362, 95 S.Ct., at 1760-1761 (plurality opinion); id., at 388, 95 S.Ct., at 1774 (opinion concurring in judgment in part and dissenting in part). 40 It is clear, however, that none of the programs upheld in Wolman provided direct financial support to sectarian schools. At the very least, then, the Court's holding today goes further in approving state assistance to sectarian schools than the Court had gone in past decisions. But beyond merely failing to approve the type of direct financial aid at issue in this case, Wolman reaffirmed the finding of the Court in Meek v. Pittenger that direct aid to the educational function of religious schools necessarily advances the sectarian enterprise as a whole. Thus, the Court in Wolman invalidated Ohio's practice of loaning instructional materials directly to sectarian schools, "even though the loan ostensibly was limited to neutral and secular instructional material and equipment, [because] it inescapably had the primary effect of providing a direct and substantial advancement of the sectarian enterprise." 433 U.S., at 250, 97 S.Ct., at 2606. In the same vein, the Court disapproved Ohio's provision of field-trip transportation directly to religious schools as impermissible direct aid that, because of the pervasively religious nature of the schools involved, furthered the religious goals of the schools, and that also required government surveillance of expenditures to such a degree as to foster entanglement of the State in religion. Id., at 252-255, 97 S.Ct., at 2608-2609. 41 Wolman thus re-enforces the conclusion that substantial direct financial aid to a religious school, even though ostensibly for secular purposes, runs the great risk of furthering the religious mission of the school as a whole because that religious mission so pervades the functioning of the school. The Court specifically recognized this in Meek : 42 "[F]aced with the substantial amounts of direct support authorized by [the statute at issue], it would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many . . . church-related elementary and secondary schools and to then characterize [the statute] as channeling aid to the secular without providing direct aid to the sectarian. Even though earmarked for secular purposes, 'when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission,' state aid has the impermissible primary effect of advancing religion. Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 37 L.Ed.2d 923." 421 U.S., at 365-366, 95 S.Ct., at 1763. 43 See Wolman v. Walter, 433 U.S., at 249-250, 97 S.Ct., at 2606; Committee for Public Education v. Nyquist, 413 U.S., at 781-783, and n. 39, 93 S.Ct., at 2969-2971, and n. 39. 44 Under the principles announced in these decided cases, I am compelled to conclude that Chapter 507, by providing substantial financial assistance directly to sectarian schools, has a primary effect of advancing religion. The vast majority of the schools aided under Chapter 507 typify the religious-pervasive institution the very purpose of which is to provide an integrated secular and sectarian education. The aid provided by Chapter 507 goes primarily to reimburse such schools for personnel costs incurred in complying with state reporting and testing requirements, costs that must be incurred if the school is to be accredited to provide a combined sectarian-secular education to school-age pupils. To continue to function as religious schools, sectarian schools thus are required to incur the costs outlined in § 3 of Chapter 507, or else lose accreditation by the State of New York. See, e. g., N.Y.Educ.Law §§ 3210, 3211 (McKinney 1970). These reporting and testing requirements would be met by the schools whether reimbursement were available or not. As such, the attendance, informational, and testing expenses compensated by Chapter 507 are essential to the overall educational functioning of sectarian schools in New York in the same way instruction in secular subjects is essential. Therefore, just as direct aid for ostensibly secular purposes by provision of instructional materials or direct financial subsidy is forbidden by the Establishment Clause, so direct aid for the performance of recordkeeping and testing activities that are an essential part of the sectarian school's functioning also is interdicted. The Court stated in Meek, and reaffirmed in Wolman : 45 "The very purpose of many [religious] schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. See Lemon v. Kurtzman, 403 U.S., at 616-617, 91 S.Ct. [2105], at 2113. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole. '[T]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.' Id., at 657, 91 S.Ct. [2105], at 2133 (opinion of BRENNAN, J.)." 421 U.S., at 366, 95 S.Ct., at 1763, quoted in 433 U.S., at 249-250, 97 S.Ct., at 1763-1764. 46 It is also true that the keeping of pupil attendance records is essential to the religious mission of sectarian schools. To ensure that the school is fulfilling its religious mission properly, it is necessary to provide a way to determine whether pupils are attending the sectarian classes required of them. Accordingly, Chapter 507 not only advances religion by aiding the educational mission of the sectarian school as a whole; it also subsidizes directly the religious mission of such schools. Chapter 507 makes no attempt, and none is possible, to separate the portion of the overall expense of attendance-taking attributable to the desire to ensure that students are attending religious instruction from that portion attributable to the desire to ensure that state attendance laws are complied with. This type of direct aid the Establishment Clause does not permit. Committee for Public Education v. Nyquist, 413 U.S., at 774-780, 93 S.Ct., at 2966-2969; Levitt I, 413 U.S., at 480, 93 S.Ct., at 2819. 47 I thus would hold that the aid provided by Chapter 507 constitutes a direct subsidy of the operating costs of the sectarian school that aids the school as a whole, and that the statute therefore directly advances religion in violation of the Establishment Clause of the First Amendment. III 48 Beyond this, Chapter 507 also fosters government entanglement with religion to an impermissible extent. Unlike Wolman, under Chapter 507 sectarian employees are compensated by the State for grading examinations. In some cases, such grading requires the teacher to exercise subjective judgment. For the State properly to ensure that judgment is not exercised to inculcate religion, a "comprehensive, discriminating, and continuing state surveillance will inevitably be required." Lemon v. Kurtzman, 403 U.S., at 619, 91 S.Ct., at 2114. 49 Moreover, Chapter 507 provides for continuing reimbursement with regard to examinations in which the questions may vary from year to year, and for examinations that may be offered in the future. This will require the State continually to evaluate the examinations to ensure that reimbursement for expenses incurred in connection with their administration and grading will not offend the First Amendment. This, too, fosters impermissible government involvement in sectarian affairs, since it is likely to lead to continuing adjudication of disputes between the State and others as to whether certain questions or new examinations present such opportunities for the advancement of religion that reimbursement for administering and grading them should not be permitted. Cf. New York v. Cathedral Academy, 434 U.S. 125, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977). 50 Finally, entanglement also is fostered by the system of reimbursement for personnel expenses. The State must make sure that it reimburses sectarian schools only for those personnel costs attributable to the sectarian employees' secular activities described in § 3 of Chapter 507. It is difficult to see how the State adequately may discover whether the time for which reimbursement is made available was devoted only to secular activities without some type of ongoing surveillance of the sectarian employees and religious schools at issue. It is this type of extensive entanglement that the Establishment Clause forbids. Lemon v. Kurtzman, 403 U.S., at 617-621, 91 S.Ct., at 2113-2115. I fail to see, and I am uncomfortable with, the so-called "ample safeguards," ante, at 659, upon which the Court and the District Court's majority, Levitt III, 461 F.Supp., at 1131, are content to rest so assured. 51 I therefore conclude that Chapter 507 has a primary effect of advancing religion and also fosters excessive government entanglement with religion. The statute, consequently, is unconstitutional under the Establishment Clause, at least to the extent it provides reimbursement directly to sectarian nonpublic schools. 52 I would reverse the judgment of the District Court. 53 Mr. Justice STEVENS, dissenting. 54 Although I agree with Mr. Justice BLACKMUN's demonstration of why today's holding is not compelled by precedent, my vote also rests on a more fundamental disagreement with the Court. The Court's approval of a direct subsidy to sectarian schools to reimburse them for staff time spent in taking attendance and grading standardized tests is but another in a long line of cases making largely ad hoc decisions about what payments may or may not be constitutionally made to nonpublic schools. In groping for a rationale to support today's decision, the Court has taken a position that could equally be used to support a subsidy to pay for staff time attributable to conducting fire drills or even for constructing and maintaining fireproof premises in which to conduct classes. Though such subsidies might represent expedient fiscal policy, I firmly believe they would violate the Establishment Clause of the First Amendment. 55 The Court's adoption of such a position confirms my view, expressed in Wolman v. Walter, 433 U.S. 229, 264, 97 S.Ct. 2593, 2614, 53 L.Ed.2d 714 (STEVENS, J., concurring in part and dissenting in part), and Roemer v. Maryland Public Works Bd., 426 U.S. 736, 775, 96 S.Ct. 2337, 2358, 49 L.Ed.2d 179 (STEVENS, J., dissenting), that the entire enterprise of trying to justify various types of subsidies to nonpublic schools should be abandoned. Rather than continuing with the sisyphean task of trying to patch together the "blurred, indistinct, and variable barrier" described in Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745, I would resurrect the "high and impregnable" wall between church and state constructed by the Framers of the First Amendment. See Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 512, 91 L.Ed. 711. 1 The First Amendment provides that "Congress shall make no law respecting an establishment of religion . . . ." This Court has repeatedly held the Establishment Clause applicable to the States through the Fourteenth Amendment. E. g., Meek v. Pittenger, 421 U.S. 349, 351, 95 S.Ct. 1753, 1756, 44 L.Ed.2d 217 (1975); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). 2 The majority in Levitt I concluded: "We hold that the lump-sum payments under Chapter 138 violate the Establishment Clause. Since Chapter 138 provides only for a single per-pupil allotment for a variety of specified services, some secular and some potentially religious, neither this Court nor the District Court can properly reduce that allotment to an amount corresponding to the actual costs incurred in performing reimbursable secular services. That is a legislative, not a judicial, function." 413 U.S., at 482, 93 S.Ct., at 2820. 3 Chapter 507, 1974 N.Y.Laws, as amended by ch. 508, note following N.Y.Educ.Law § 3601 (McKinney Supp. 1971-1979), provides in relevant part: "Section 1. Legislative findings. The legislature hereby finds and declares that: "The state has the responsibility to provide educational opportunity of a quality which will prepare its citizens for the challenges of American life in the last decades of the twentieth century. "To fulfill this responsibility, the state has the duty and authority to evaluate, through a system of uniform state testing and reporting procedures, the quality and effectiveness of instruction to assure that those who are attending instruction, as required by law, are being adequately educated within their individual capabilities. "In public schools these fundamental objectives are accomplished in part through state financial assistance to local school districts. "More than seven hundred thousand pupils in the state comply with the compulsory education law by attending nonpublic schools. It is a matter of state duty and concern that such nonpublic schools be reimbursed for the actual costs which they incur in providing services to the state which they are required by law to render in connection with the state's responsibility for reporting, testing and evaluating. * * * * * "§ 3. Apportionment. The commissioner shall annually apportion to each qualifying school, for school years beginning on and after July first, nineteen hundred seventy-four, an amount equal to the actual cost incurred by each such school during the preceding school year for providing services required by law to be rendered to the state in compliance with the requirements of the state's pupil evaluation program, the basic educational data system, regents examinations, the statewide evaluation plan, the uniform procedure for pupil attendance reporting, and other similar state prepared examinations and reporting procedures. * * * * * "§ 7. Audit. No application for financial assistance under this act shall be approved except upon audit of vouchers, or other documents by the commissioner as are necessary to insure that such payment is lawful and proper. "The state department of audit and control shall from time to time examine any and all necessary accounts and records of a qualifying school to which an apportionment has been made pursuant to this act for the purpose of determining the cost to such school of rendering the services referred to in section three of this act. If after such audit it is determined that any qualifying school has received funds in excess of the actual cost of providing the services enumerated in section three of this act, such school shall immediately reimburse the state in such excess amount. * * * * * "§ 9. In enacting this chapter it is the intention of the legislature that if section seven or any other provision of this act or any rules or regulations promulgated thereunder shall be held by any court to be invalid in whole or in part or inapplicable to any person or situation, all remaining provisions or parts thereof or remaining rules and regulations or parts thereof not so invalidated shall nevertheless remain fully effective as if the invalidated portion had not been enacted or promulgated, and the application of any such invalidated portion to other persons not similarly situated or other situations shall not be affected thereby." 4 PEP tests are "standardized reading and mathematics achievement tests developed and published by the Educational Department and based on New York State courses of study." App. 28a. Comprehensive tests correspond to the following subject areas: biology; bookkeeping and accounting II; business law; business mathematics; chemistry; earth science; English; French; German; Hebrew; Italian; Latin; 9th-year mathematics; 10th-year mathematics; 11th-year mathematics; physics; shorthand II and transcription; social studies; and Spanish. 461 F.Supp., at 1125, n. 3. The RSCQT tests are divided into two parts. Part 1 is a "test of general scholastic aptitude, containing questions intended to measure ability to think clearly and accurately." App. 38a. Part 2 is "a test of subject matter achievement directly related to courses studied in high school." Ibid. Clearly, the tests at issue are secular in character. 5 The recordkeeping function, according to the parties' stipulation of facts, involves "collection of data requested from homeroom teachers, pupil personnel services staff, attendance secretaries and administrators; compilation and correlation of data; and filling out and mailing of report." App. 31a. The attendance-taking function is described in similar ministerial terms. Id., at 37a. Of interest is the District Court's finding that "[t]he lion's share of the reimbursements to private schools under the Statute would be for attendance-reporting. According to applications prepared by intervenor-defendant private schools for the 1973-1974 school year, between 85% and 95% of the total reimbursement is accounted for by the costs attributable to attendance-taking, of which all but a negligible portion represents compensation to personnel for this service." 461 F.Supp., at 1126. 6 As Mr. Justice BLACKMUN wrote in Roemer v. Maryland Public Works Bd., 426 U.S. 736, 747, 96 S.Ct. 2337, 2345, 49 L.Ed.2d 179 (1976) (footnote omitted): "The Court has not been blind to the fact that in aiding a religious institution to perform a secular task, the State frees the institution's resources to be put to sectarian ends. If this were impermissible, however, a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair. The Court never has held that religious activities must be discriminated against in this way." Cf. New York v. Cathedral Academy, 434 U.S. 125, 134, 98 S.Ct. 340, 346, 54 L.Ed.2d 346 (1977) ("[T]his Court has never held that freeing private funds for sectarian uses invalidates otherwise secular aid to religious institutions . . ."). 7 As the District Court wrote: "The services for which the private schools would be reimbursed are discrete and clearly identifiable. A teacher's taking of attendance, administration of examinations, and record-keeping can hardly be confused with his or her other activities. Although there might be a possibility of fraud or mistake in the records submitted by private schools of the teachers' time spent on such activities, the careful auditing procedures anticipated by § 7 of the Statute should provide an adequate safeguard against inflated claims. In addition, since the services subsidized under the Statute are highly routinized, costs of the services for a given size of class should vary little from school to school, thus enabling the State to check claims filed by private schools against records maintained by hundreds of public schools under State supervision." 461 F.Supp., at 1131 (footnote omitted). 8 We find no merit whatever in appellants' argument, which was not made below, that the extent of entanglement here is sufficient to raise the danger of future political divisiveness along religious lines. Brief for Appellants 16-18. Wolman was decided without reference to any such potential discord. Moreover, the New York plan reimburses "actual costs." Thus it cannot be maintained that the New York system will provoke religious battles over legislative appropriations, an eventuality that could conceivably occur under a system of state aid involving direct appropriations. Cf. Committee for Public Education v. Nyquist, 413 U.S. 756, 794-798, 93 S.Ct. 2955, 2976-2978, 37 L.Ed.2d 948 (1973).

23

444 U.S. 598 100 S.Ct. 814 63 L.Ed.2d 55 CALIFORNIA BREWERS ASSOCIATION et al., Petitioners,v.Abram BRYANT et al. No. 78-1548. Feb. 20, 1980. Rehearing Denied April 14, 1980. See 445 U.S. 973, 100 S.Ct. 1672. Syllabus As an exception to the rule making it unlawful for an employer to engage in practices, procedures, or tests that operate to "freeze" the status quo of prior discriminatory employment practices, § 703(h) of Title VII of the Civil Rights Act of 1964 provides that it shall not be an unlawful employment practice for an employer to apply different standards of compensation, terms, conditions, or privileges of employment pursuant to a bona fide seniority system if such differences are not the result of an intention to discriminate because of race. A multiemployer brewery industry collective-bargaining agreement accorded greater benefits, with respect to hiring and layoffs, to "permanent" than to "temporary" employees, and provided that a temporary employee must work at least 45 weeks in a single calendar year before he can become a permanent employee. Respondent Bryant (hereafter respondent), a Negro, brought a class action in District Court against petitioner association, petitioner employers, and several labor unions, alleging, inter alia, that the defendants had discriminated against him and other Negroes in violation of Title VII, and, in particular that the agreement's 45-week requirement had operated to preclude him and the members of his class from achieving, or from a reasonable opportunity of achieving, permanent employee status. The District Court dismissed the complaint for failure to state a claim on which relief could be granted. The Court of Appeals reversed, holding that the 45-week requirement was not a "seniority system" or part of a "seniority system" within the meaning of § 703(h), and accordingly remanded the case to the District Court to enable respondent to prove that such requirement has had a discriminatory impact on Negroes. Held: The Court of Appeals erred in holding that the 45-week requirement is not a component of a "seniority system" within the meaning of § 703(h). The fact that the system created by the agreement establishes two parallel seniority ladders, one allocating benefits due temporary employees and the other identifying the benefits owed permanent employees, does not prevent it from being a "seniority system" within the meaning of § 703(h). The 45-week requirement, correspondingly, serves the needed function of establishing the threshold requirement for entry into the permanent employee seniority track. Cf. Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396. Unlike such criteria as educational standards, aptitude or physical tests, or standards that give effect to subjectivity, but like any "seniority" rule, the 45-week requirement focuses on length of employment. Moreover, the requirement does not distort the operation of the basic system established by the agreement, which rewards employment longevity with heightened benefits, since, as a general rule, the more seniority a temporary employee accumulates, the more likely it is that he will be able to satisfy the 45-week requirement. Pp. 605-611. 585 F.2d 421, vacated and remanded. Willard Z. Carr, Jr., Los Angeles, Cal., for petitioners, by Roland P. Wilder, Jr., Washington, D. C., for Union respondents supporting the petitioners. James Wolpman, Palo Alto, Cal., for respondent Abram Bryant. Lawrence G. Wallace, Washington, D. C., for the United States, as amicus curiae, by special leave of Court. Mr. Justice STEWART delivered the opinion of the Court. 1 Title VII of the Civil Rights Act of 19641 makes unlawful, practices, procedures, or tests that "operate to 'freeze' the status quo of prior discriminatory employment practices." Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158. To this rule, § 703(h) of the Act, 42 U.S.C. § 2000e-2(h), provides an exception: 2 "[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race . . . ." 3 In Teamsters v. United States, 431 U.S. 324, 352, 97 S.Ct. 1843, 1863, 52 L.Ed.2d 396, the Court held that "the unmistakable purpose of § 703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII . . . even where the employer's pre-Act discrimination resulted in whites having greater existing seniority rights than Negroes."2 4 The present case concerns the application of § 703(h) to a particular clause in a California brewery industry collective-bargaining agreement. That agreement accords greater benefits to "permanent" than to "temporary" employees, and the clause in question provides that a temporary employee must work at least 45 weeks in a single calendar year before he can become a permanent employee. The Court of Appeals for the Ninth Circuit held that the 45-week requirement was not a "seniority system" or part of a "seniority system" within the meaning of § 703(h). 585 F.2d 421. We granted certiorari to consider the important question presented under Title VII of the Civil Rights Act of 1964. 442 U.S. 916, 99 S.Ct. 2835, 61 L.Ed.2d 282. 5 * In 1973, respondent Bryant (hereafter respondent), a Negro, filed a complaint in the United States District Court for the Northern District of California, on behalf of himself and other similarly situated Negroes, against the California Brewers Association and seven brewing companies (petitioners here), as well as against several unions. The complaint alleged that the defendants had discriminated against the respondent and other Negroes in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and in violation of 42 U.S.C. § 1981.3 6 The complaint, as amended, alleged that the respondent had been intermittently employed since May 1968 as a temporary employee of one of the defendants, the Falstaff Brewing Corp. It charged that all the defendant employers had discriminated in the past against Negroes, that the unions had acted in concert with the employers in such discrimination, and that the unions had discriminated in referring applicants from hiring halls to the employers. The complaint further asserted that this historical discrimination was being perpetuated by the seniority and referral provisions of the collective-bargaining agreement (Agreement) that governed industrial relations at the plants of the seven defendant employers. In particular, the complaint alleged, the Agreement's requirement that a temporary employee work 45 weeks in the industry in a single calendar year to reach permanent status had, as a practical matter, operated to preclude the respondent and the members of his putative class from achieving, or from a reasonable opportunity of achieving, permanent employee status.4 Finally, the complaint alleged that on at least one occasion one of the defendant unions had passed over the respondent in favor of more junior white workers in making referrals to job vacancies at a plant of one of the defendant employers. 7 The Agreement is a multiemployer collective-bargaining agreement negotiated more than 20 years ago, and thereafter updated, by the California Brewers Association (on behalf of the petitioner brewing companies) and the Teamsters Brewery and Soft Drink Workers Joint Board of California (on behalf of the defendant unions). The Agreement establishes several classes of employees and the respective rights of each with respect to hiring and layoffs. Three of these classes are pertinent here: "permanent," "temporary," and "new" employees. 8 A permanent employee is "any employee . . . who . . . has completed forty-five weeks of employment under this Agreement in one classification5 in one calendar year as an employee of the brewing industry in [the State of California]." An employee who acquires permanent status retains that status unless he "is not employed under this Agreement for any consecutive period of two (2) years. . . ."6 A temporary employee under the Agreement is "any person other than a permanent employee . . . who worked under this agreement . . . in the preceding calendar year for at least sixty (60) working days. . . . " A new employee is any employee who is not a permanent or temporary employee. 9 The rights of employees with respect to hiring and layoffs depend in substantial part on their status as permanent, temporary, or new employees.7 The Agreement requires that employees at a particular plant be laid off in the following order: new employees in reverse order of their seniority at the plant, temporary employees in reverse order of their plant seniority, and then permanent employees in reverse order of their plant seniority. Once laid off, employees are to be rehired in the reverse order from which they were laid off. 10 The Agreement also gives permanent employees special "bumping" rights. If a permanent employee is laid off at any plant subject to the Agreement, he may be dispatched by the union hiring hall to any other plant in the same local area with the right to replace the temporary or new employee with the lowest plant seniority at that plant. 11 Finally, the Agreement provides that each employer shall obtain employees through the local union hiring hall to fill needed vacancies. The hiring hall must dispatch laid-off workers to such an employer in the following order: first, employees of that employer in the order of their seniority with that employer; second, permanent employees registered in the area in order of their industry seniority; third, temporary employees in the order of their seniority in the industry; and fourth, new employees in the order of their industry seniority. The employer then "shall have full right of selection among" such employees. 12 The District Court granted the defendants' motions to dismiss the complaint for failure to state a claim on which relief could be granted. No opinion accompanied this order. A divided panel of the Court of Appeals reversed, 585 F.2d 421, concluding that the 45-week rule is not a "seniority system" or part of a "seniority system" within the meaning of § 703(h) of Title VII. In the appellate court's view the provision "lacks the fundamental component of such a system" which is "the concept that employment rights should increase as the length of an employee's service increases." 585 F.2d, at 426. The court pointed out that under the Agreement some employees in the industry could acquire permanent status after a total of only 45 weeks of work if those weeks were served in one calendar year, while others "could work for many years and never attain permanent status because they were always terminated a few days before completing 45 weeks of work in any one year." Id., at 426-427. 13 The Court of Appeals concluded that "while the collective bargaining agreement does contain a seniority system, the 45-week provision is not a part of it." Id., at 427: 14 "The 45-week rule is simply a classification device to determine who enters the permanent employee seniority line and this function does not make the rule part of a seniority system. Otherwise any hiring policy (e. g., an academic degree requirement) or classification device (e. g., merit promotion) would become part of a seniority system merely because it affects who enters the seniority line." Id., at 427, n. 11.8 15 Accordingly, the Court of Appeals remanded the case to the District Court to enable the respondent to prove that the 45-week provision has had a discriminatory impact on Negroes under the standards enunciated in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. 585 F.2d, at 427-428.9 II 16 Title VII does not define the term "seniority system," and no comprehensive definition of the phrase emerges from the legislative history of § 703(h).10 Moreover, our cases have not purported to delineate the contours of its meaning.11 It is appropriate, therefore, to begin with commonly accepted notions about "seniority" in industrial relations, and to consider those concepts in the context of Title VII and this country's labor policy. 17 In the area of labor relations, "seniority" is a term that connotes length of employment.12 A "seniority system" is a scheme that, alone or in tandem with non-"seniority" criteria,13 allots to employees ever improving employment rights and benefits as their relative lengths of pertinent employment increase.14 Unlike other methods of allocating employment benefits and opportunities, such as subjective evaluations or educational requirements, the principal feature of any and every "seniority system" is that preferential treatment is dispensed on the basis of some measure of time served in employment. 18 Viewed as a whole, most of the relevant provisions of the Agreement before us in this case conform to these core concepts of "seniority." Rights of temporary employees and rights of permanent employees are determined according to length of plant employment in some respects, and according to length of industry employment in other respects. Notwithstanding this fact, the Court of Appeals concluded that the 45-week rule should not be viewed, for purposes of § 703(h), as part of what might otherwise be considered a "seniority system." For the reasons that follow, we hold that this conclusion was incorrect. 19 First, by legislating with respect to "systems"15 of seniority in § 703(h), Congress in 1964 quite evidently intended to exempt from the normal operation of Title VII more than simply those components of any particular seniority scheme that, viewed in isolation, embody or effectuate the principle that length of employment will be rewarded. In order for any seniority system to operate at all, it has to contain ancillary rules that accomplish certain necessary functions, but which may not themselves be directly related to length of employment.16 For instance, every seniority system must include rules that delineate how and when the seniority time clock begins ticking,17 as well as rules that specify how and when a particular person's seniority may be forfeited.18 Every seniority system must also have rules that define which passages of time will "count" towards the accrual of seniority and which will not.19 Every seniority system must, moreover, contain rules that particularize the types of employment conditions that will be governed or influenced by seniority, and those that will not.20 Rules that serve these necessary purposes do not fall outside § 703(h) simply because they do not, in and of themselves, operate on the basis of some factor involving the passage of time.21 20 Second, Congress passed the Civil Rights Act of 1964 against the backdrop of this Nation's longstanding labor policy of leaving to the chosen representatives of employers and employees the freedom through collective bargaining to establish conditions of employment applicable to a particular business or industrial environment. See generally Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480. It does not behoove a court to second-guess either that process or its products. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146. Seniority systems, reflecting as they do, not only the give and take of free collective bargaining, but also the specific characteristics of a particular business or industry, inevitably come in all sizes and shapes. See Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048; Aeronautical Lodge v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513. As we made clear in the Teamsters case, seniority may be "measured in a number of ways" and the legislative history of § 703(h) does not suggest that it was enacted to prefer any particular variety of seniority system over any other. 431 U.S., at 355, n. 41, 97 S.Ct., at 1865. 21 What has been said does not mean that § 703(h) is to be given a scope that risks swallowing up Title VII's otherwise broad prohibition of "practices, procedures, or tests" that disproportionately affect members of those groups that the Act protects. Significant freedom must be afforded employers and unions to create differing seniority systems. But that freedom must not be allowed to sweep within the ambit of § 703(h) employment rules that depart fundamentally from commonly accepted notions concerning the acceptable contours of a seniority system, simply because those rules are dubbed "seniority" provisions or have some nexus to an arrangement that concededly operates on the basis of seniority. There can be no doubt, for instance, that a threshold requirement for entering a seniority track that took the form of an educational prerequisite would not be part of a "seniority system" within the intendment of § 703(h). 22 The application of these principles to the case at hand is straightforward. The Agreement sets out, in relevant part, two parallel seniority ladders. One allocates the benefits due temporary employees; the other identifies the benefits owed permanent employees. The propriety under § 703(h) of such parallel seniority tracks cannot be doubted after the Court's decision in the Teamsters case. The collective-bargaining agreement at issue there allotted one set of benefits according to each employee's total service with the company, and another set according to each employee's service in a particular job category. Just as in that case the separation of seniority tracks did not derogate from the identification of the provisions as a "seniority system" under § 703(h), so in the present case the fact that the system created by the Agreement establishes two or more seniority ladders does not prevent it from being a "seniority system" within the meaning of that section. 23 The 45-week rule, correspondingly, serves the needed function of establishing the threshold requirement for entry into the permanent-employee seniority track. As such, it performs the same function as did the employment rule in Teamsters that provided that a line driver began to accrue seniority for certain purposes only when he started to work as a line driver, even though he had previously spent years as a city driver for the same employer. In Teamsters, the Court expressed no reservation about the propriety of such a threshold rule for § 703(h) purposes. There is no reason why the 45-week threshold requirement at issue here should be considered any differently. 24 The 45-week rule does not depart significantly from commonly accepted concepts of "seniority." The rule is not an educational standard, an aptitude or physical test, or a standard that gives effect to subjectivity. Unlike such criteria, but like any "seniority" rule, the 45-week requirement focuses on length of employment. 25 Moreover, the rule does not distort the operation of the basic system established by the Agreement, which rewards employment longevity with heightened benefits. A temporary employee's chances of achieving permanent status increase inevitably as his industry employment and seniority accumulate. The temporary employees with the most industry seniority have the first choice of new jobs within the industry available for temporary employees. Similarly, the temporary employees with the most plant seniority have the first choice of temporary employee jobs within their plant and enjoy the greatest security against "bumping" by permanent employees from nearby plants. As a general rule, therefore, the more seniority a temporary employee accumulates, the more likely it is that he will be able to satisfy the 45-week requirement. That the correlation between accumulated industry employment and acquisition of permanent employee status is imperfect does not mean that the 45-week requirement is not a component of the Agreement's seniority system. Under any seniority system, contingencies such as illnesses and layoffs may interrupt the accrual of seniority and delay realization of the advantages dependent upon it.22 26 For these reasons, we conclude that the Court of Appeals was in error in holding that the 45-week rule is not a component of a "seniority system" within the meaning of § 703(h) of Title VII of the Civil Rights Act of 1964. In the District Court the respondent will remain free to show that, in respect to the 45-week rule or in other respects, the seniority system established by the Agreement is not "bona fide," or that the differences in employment conditions that it has produced are "the result of an intention to discriminate because of race." 27 For the reasons stated, the judgment before us is vacated, and the case is remanded to the Court of Appeals for the Ninth Circuit for further proceedings consistent with this opinion. 28 It is so ordered. 29 Mr. Justice POWELL and Mr. Justice STEVENS took no part in the consideration or decision of this case. 30 Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice BLACKMUN join, dissenting. 31 In the California brewing industry, an employee's rights and benefits are largely dependent on whether he is a "permanent" employee within the meaning of the collective-bargaining agreement. Permanent employees are laid off after all other employees. If laid off at one facility, a permanent employee is permitted to replace the least senior nonpermanent employee at any other covered facility within the local area. Permanent employees are selected before temporary employees to fill vacancies. They have exclusive rights to supplemental unemployment benefits upon layoff and receive higher wages and vacation pay for the same work performed by other employees. Permanent employees have first choice of vacation times, less rigorous requirements for qualifying for holiday pay, exclusive access to veterans' reinstatement and seniority rights, and priority in assignment of overtime work among bottlers. 32 According to respondent Bryant's complaint, no Negro has ever attained permanent employee status in the California brewing industry.1 33 The provision of the collective-bargaining agreement at issue here defines a permanent employee as one "who . . . has completed forty-five weeks of employment . . . in one classification in one calendar year as an employee of the brewing industry in this State." An employee who works 44 weeks per year for his entire working life remains a temporary employee. By contrast, an employee who works 45 weeks in his first year in the industry attains permanent employee status. This simple fact belies the Court's conclusion that the 45-week requirement "does not depart significantly from commonly accepted concepts of 'seniority.' " Ante, at 609. Since I am unable to agree that the provision at issue is part of a "seniority system" under § 703(h) of Title VII, I dissent. 34 * Neither Title VII nor its legislative history provides a comprehensive definition of the term "seniority system."2 The Court is therefore correct in concluding that the term must be defined by reference to "commonly accepted notions about 'seniority' in industrial relations" and "in the context of Title VII and this country's labor policy." Ante, at 605. Those "commonly accepted notions," however, do not lead to the Court's holding today. And I believe that the relevant policies do not support that holding, but instead require that it be rejected. 35 The concept of "seniority" is not a complicated one. The fundamental principle, as the Court recognizes, ante, at 606, is that employee rights and benefits increase with length of service. This principle is reflected in the very definition of the term, as found in dictionaries3 and treatises and articles in the field of industrial relations.4 To quote from a few of the sources on which the Court purports to rely today: "Seniority is a system of employment preference based on length of services employees with the longest service are given the greatest job security and the best opportunities for advancement." Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv.L.Rev. 1532, 1534 (1962). "The variations and combinations of seniority principles are very great, but in all cases the basic measure is length of service, with preference accorded to the senior worker." Cooper & Sobol, Seniority and Testing under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1602 (1969). "Seniority grants certain preferential treatment to long-service employees almost at the expense of short-service employees. . . . [S]eniority is defined as length of service." E. Beal, E. Wickersham, & P. Kienast, The Practice of Collective Bargaining 430 (1972). 36 It is hardly surprising that seniority has uniformly been defined in terms of cumulative length of service. No other definition could accord with the policies underlying the recognition of seniority rights. A seniority system provides an objective standard by which to ascertain employee rights and protections, thus reducing the likelihood of arbitrariness or caprice in employer decisions. At the same time, it promotes stability and certainty among employees, furnishing a predictable method by which to measure future employment position. See, e. g., Sayles, Seniority: An Internal Union Problem 30 Harv.Bus.Rev. 55 (1952); C. Golden & H. Ruttenberg, The Dynamics of Industrial Democracy 128-131 (1973); Cooper & Sobol, supra, at 1604-1605. 37 The Court concedes this general point, recognizing that a " 'seniority system' is a scheme that, alone or in tandem with non-'seniority' criteria, allots to employees ever improving employment rights and benefits as their relative lengths of pertinent employment increase." Ante, at 605-606 (footnote omitted). In my view, that concession is dispositive of this case. The principal effect of the 45-week requirement is to ensure that employee rights and benefits in the California brewing industry are not "ever improving" as length of service increases. Indeed, cumulative length of service is only incidentally relevant to the 45-week rule. The likelihood that a temporary employee will attain permanent employee status is largely unpredictable. The 45-week period, which is exclusive of vacation, leaves of absence, and time lost because of injury or sickness, represents almost 90% of the calendar year. Even if an employee is relatively senior among temporaries, his ability to work 45 weeks in a year will rest in large part on fortuities over which he has no control. The most obvious reason that employees have been prevented from attaining permanent employee status—a reason barely referred to by the Court—is that the brewing industry is a seasonal one. An employee may also be prevented from becoming permanent because of replacement by permanent employees or an employer's unexpected decision to lay off a particular number of employees during the course of a year.5 It is no wonder that the accrual of seniority by temporary employees has not led with any regularity to the acquisition of permanent employee status.6 In sum, the 45-week rule does not have the feature of providing employees with a reasonably certain route by which to measure future employment position. So understood, the 45-week rule has very little to do with seniority, for it makes permanent status turn on fortuities over which the employee has no control, not on length of service with the employer or in the relevant unit. 38 The Court avoids this conclusion by little more than assertion. It observes that the 45-week rule acts as a threshold requirement for entry onto the seniority track composed of permanent employees, but eliminates the force of that observation with the inevitable concession that such threshold requirements are not necessarily entitled to § 703(h) exemption.7 It notes that the 45-week requirement "focuses on length of employment," and proceeds to the unexplained conclusion that it therefore "does not depart significantly from commonly accepted concepts of 'seniority.' " And it adds that more senior temporary employees tend to have a greater opportunity to obtain work and thus to attain permanent status through 45 weeks of employment in a calendar year. 39 The Court's analysis, of course, is largely dependent on its conclusion that since the 45-week requirement is one measured by time of service, it does not depart from common concepts of seniority. That conclusion, however, is foreclosed by the Court's own definition of a seniority system as one in which employee rights increase with cumulative length of service—not length of service within a calendar year. The mere fact that the 45-week rule is in some sense a measure of "time" does not demonstrate a valid relation to concepts of seniority. Such a conclusion would make the § 703(h) exemption applicable to a rule under which permanent employee status is dependent on number of days served within a week, or hours served within a day.8 40 Nor is there much force to the suggestion that the 45-week requirement somehow becomes part of a seniority system because permanent employee status is more easily achieved by the more senior temporary employees. I could agree with the Court's decision if petitioners demonstrated that the collective-bargaining agreement actually operates to reward employees in order of cumulative length of service. But at this stage of the litigation there is no evidence that temporary employees attain permanent status in a way correlating even roughly with total length of employment. The mere possibility that senior temporary employees are more likely to work for 45 weeks is, in my view, insufficient.9 It might as well be said that a law conditioning permanent employee status on the attainment of a certain level of skill is a "seniority" provision since skills tend to increase with length of service. A temporary employee is always subject to a risk that for some reason beyond his control, he will be unable to work the full 45 weeks and be forced to start over again. II 41 Since the 45-week rule operates as a threshold requirement with no relation to principles of seniority, I believe that the rule is for analytical purposes no different from an educational standard or physical test which, as the Court indicates, is plainly not entitled to § 703(h) exemption. Accordingly, I think it clear that the 45-week requirement is not part of a "seniority system" within the meaning of § 703(h). But if the question were perceived to be close, I would be guided by the familiar principle that exemptions to remedial statutes should be construed narrowly. "To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people." Phillips Co. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945). See, e. g., Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 231, 99 S.Ct. 1067, 1083, 59 L.Ed.2d 261 (1979); Abbott Laboratories v. Portland Retail Druggists Assn., 425 U.S. 1, 12, 96 S.Ct. 1305, 1313, 47 L.Ed.2d 537 (1976); Peyton v. Rowe, 391 U.S. 54, 65, 88 S.Ct. 1549, 1555, 20 L.Ed.2d 426 (1968). The effect of § 703(h) is to exempt seniority systems from the general prohibition on practices which perpetuate the effects of racial discrimination. This exception is a limited one in derogation of the overarching purpose of Title VII, "the integration of blacks into the mainstream of American society," Steelworkers v. Weber, 443 U.S. 193, 202, 99 S.Ct. 2721, 2727, 61 L.Ed.2d 480 (1979). A statute designed to remedy the national disgrace of discrimination in employment should be interpreted generously to comport with its primary purpose; exemptions should be construed narrowly so as not to undermine the effect of the general prohibition. Today the Court not only refuses to apply this familiar principle of statutory construction, it does not even acknowledge it. 42 In my view, the Court's holding is fundamentally at odds with the purposes of Title VII and the basic function of the § 703(h) exemption. I dissent.10 1 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. 2 United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571, extended this holding to preclude Title VII challenges to seniority systems that perpetuated the effect of discriminatory post-Act practices that had not been the subject of a timely complaint. See also Teamsters v. United States, 431 U.S. at 348, n. 30, 97 S.Ct. at 1861. 3 The complaint also alleged, under 29 U.S.C. §§ 159 and 185, that the union defendants had breached their duty of fair representation by, among other things, negotiating "unreasonable privileges for some employees over others. . . ." 4 In this Court, the respondent emphasizes that he has not contended that there is anything illegal in classifying employees as permanent and temporary or in according greater rights to permanent than to temporary employees. His sole Title VII challenge in this respect has been to the 45-week rule on its face and as it has been applied by the defendant unions and employers. 5 The Agreement classifies employees into brewers, bottlers, drivers, shipping and receiving clerks, and checkers. Under the Agreement, separate seniority lists have to be maintained for each of these classifications of employees. The respondent is a brewer. 6 An employee may also lose permanent status if he "quits the industry" or is discharged for certain specified reasons. 7 In addition, permanent employees are given preference over temporary employees with respect to various other employment matters, such as the right to collect supplemental unemployment benefits upon layoff, wages and vacation pay, and choice of vacation times. 8 The Court of Appeals also observed that "the 45-week requirement makes the system particularly susceptible to discriminatory application since employers and unions can manipulate their manpower requirements and employment patterns to prevent individuals who are disfavored from ever achieving permanent status." 585 F.2d, at 427. This danger, according to the court, is almost never present in any "true" seniority system, in which rights "usually accumulate automatically over time. . . ." Ibid. 9 The Court of Appeals directed the trial court on remand to consider as well the respondent's claims under 42 U.S.C. § 1981 and 29 U.S.C. §§ 159 and 185. 10 See 110 Cong.Rec. 1518, 5423, 7207, 7213, 7217, 12723, 15893 (1964). The example of a "seniority system" most frequently cited in the congressional debates was one that provided that the "last hired" employee would be the "first fired." Nowhere in the debates, however, is there any suggestion that this model was intended to be anything other than an illustration. 11 See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113; United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571; Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396; Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444. 12 Webster's Third New International Dictionary 2066 (unabridged ed. 1961) defines "seniority," in pertinent part, as the "status attained by length of continuous service . . . to which are attached by custom or prior collective agreement various rights or privileges . . . on the basis of ranking relative to others. . . ." 13 A collective-bargaining agreement could, for instance, provide that transfers and promotions are to be determined by a mix of seniority and other factors, such as aptitude tests and height requirements. That the "seniority" aspects of such a scheme of transfer and promotion might be covered by § 703(h) does not mean that the aptitude tests or the height requirements would also be so covered. 14 See E. Beal, E. Wickersham, & P. Kienast, The Practice of Collective Bargaining 430-431 (1972); Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1602 (1969); Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv.L.Rev. 1532, 1534 (1962). 15 Webster's Third New International Dictionary 2322 (unabridged ed. 1961) defines "system," in pertinent part, as a "complex unity formed of many often diverse parts subject to a common plan or serving a common purpose." 16 See generally S. Slichter, J. Healy, & E. Livernash, The Impact of Collective Bargaining on Management 115-135 (1960). 17 By way of example, a collective-bargaining agreement could specify that an employee begins to accumulate seniority rights at the time he commences employment with the company, at the time he commences employment within the industry, at the time he begins performing a particular job function, or only after a probationary period of employment. 18 For example, a collective-bargaining agreement could provide that accumulated seniority rights are permanently forfeited by voluntary resignation, by severance for cause, or by nonemployment at a particular plant or in the industry for a certain period. 19 For instance, the time an employee works in the industry or with his current employer might not be counted for the purpose of accumulating seniority rights, whereas the time the employee works in a particular job classification might determine his seniority. 20 By way of example, a collective-bargaining agreement could provide that an employee's seniority will govern his entitlement to vacation time and his job security in the event of layoffs, but will have no influence on promotions or job assignments. 21 The examples in the text of the types of rules necessary to the operation of a seniority system are not intended to and do not comprise an exhaustive list. 22 There are indications in the record of this case that a long-term decline in the California brewing industry's demand for labor is a reason why the accrual of seniority as a temporary employee has not led more automatically to the acquisition of permanent status. But surely, what would be part of a "seniority system" in an expanding labor market does not become something else in a declining labor market. 1 In the present procedural posture of the case, of course, the allegations of the complaint must be accepted as true. 2 The legislative history does, however, provide a bit more guidance than the Court admits. The fact that the sole example of a seniority system given in the congressional debates is one in which rights increase with cumulative length of service is at least suggestive. See ante, at 605, n. 10. 3 See, e. g., Webster's Third New International Dictionary 2066 (unabridged ed. 1961) ("a status attained by length of continuous service (as in a company . . .) to which are attached by custom or prior collective agreement various rights or privileges"); Random House Dictionary of the English Language 1299 (1966) ("priority, precedence, or status obtained as the result of a person's length of service"); Black's Law Dictionary 1222 (5th ed. 1979) ("As used with reference to job seniority, worker with most years of service is first promoted within range of jobs subject to seniority, and is the last laid off, proceeding so on down the line to the youngest in point of service"); Ballentine's Law Dictionary 1160 (1969) ("the principle in labor relations that length of employment determines the order of layoffs, rehirings, and advancements"). 4 See, e. g., Roberts' Dictionary of Industrial Relations 390 (1966) ("The length of service an individual employee has in the plant. . . . The seniority principle rests on the assumption that the individuals with the greatest length of service within the company should be given preference in employment"); United States Department of Labor, Bureau of Labor Statistics, Bulletin No. 908-11, p. 1 (1949) ("A seniority program aims to provide maximum security in employment to those with the longest service"); E. Dangel & I. Shriber, The Law of Labor Unions § 15 (1941) ("Seniority . . . is an employment advantage in the matter of the choice of and the right to work in one's occupation on the basis of an employee's length of service"); BNA, Collective Bargaining Contracts, Techniques of Negotiation and Administration with Topical Classification of Clauses 488 (1941) ("The term [seniority] refers to length of service with the employer or in some division of an enterprise"); Meyers, The Analytic Meaning of Seniority, Industrial Relations Research Association, Proceedings of Eighteenth Annual Meeting 194 (1966) ("Seniority is the application of the criterion of length of service for the calculation of relative equities among employees"); McCaffrey, Development and Administration of Seniority Provisions, Proceedings of New York University Second Annual Conference on Labor 132 (1949) ("seniority may be defined as the length of company-recognized service as applied to certain employer-employee relationships"); Christenson, Seniority Rights Under Labor Union Working Agreements, 11 Temp.L.Q. 355 (1937) ("seniority is a rule providing that employers promote, lay-off and re-employ labor, according to length of previous service"). Cf. P. Selznick, Law, Society, and Industrial Justice 203 (1969) (referring to the " 'rather general feeling that a worker who has spent many years on his job has some stake in that job and in the business of which it is a part' "). 5 Indeed, the agreement expressly provides that a permanent employee laid off at one facility will replace (or "bump") the temporary employee with the lowest plant seniority, even if that employee has more industry seniority than others. As a result, temporaries who are relatively senior in terms of industry seniority may have less opportunity to work 45 weeks in a calendar year than temporaries with less industry seniority but more plant seniority. Thus, it is simply not true that temporary employees obtain permanent employee status in order of cumulative length of employment, for the requisite 45 weeks is computed on the basis of service in the industry rather than in particular plants. 6 The Court acknowledges this point, ante, at 610, n. 22, but responds that a system which would fall within § 703(h) in an expanding labor market does not lose that status by virtue of the fact that the labor market is contracting. In the Court's words, however, the question is whether the 45-week rule is a part of a seniority system because it "allots to employees ever improving employment rights and benefits as their relative lengths of pertinent employment increase." In that context it is surely relevant whether the 45-week provision does in fact operate to reward cumulative length of service, or serves instead as a virtually impassable barrier to advancement. 7 As the Court's own analysis suggests, the 45-week provision is entirely different from the seniority provisions involved in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). At issue in that case was a seniority system granting some benefits on the basis of an employee's cumulative length of service with the company, and others on the basis of cumulative length of service in a particular job category. In both cases employee rights and benefits depended on total length of service in the relevant unit, not on the length of service within a calendar year. 8 For example, there can be no serious question that a provision making permanent status dependent on 7 days of work per week, or 12 hours per day would not be part of a "seniority system" within the meaning of § 703(h). 9 I could understand, although I do not favor, a decision remanding this case for factual findings on the question whether temporary employees in fact acquire permanent status and, if so, whether they do so in order of cumulative length of service. In my view, it is extraordinary for the Court to conclude, in a factual vacuum and on the authority of nothing other than petitioners' word, that "the rule does not distort the operation of the basic system established by the Agreement, which rewards employment longevity with heightened benefits." See also n. 5, supra. 10 To decide this case we are not required to offer a complete definition of the term "seniority system" within the meaning of § 703(h). Nor are we called upon to canvass and evaluate rules "ancillary" to seniority systems. The question whether all of the rules listed by the Court, ante, at 607, nn. 17-20, are part of a seniority system is not at all easy, and the Court's own reasoning demonstrates that its discussion of those rules is gratuitous and does little to advance analysis of the 45-week requirement. That requirement serves none of the functions of an "ancillary" rule.

12

444 U.S. 555 100 S.Ct. 790 63 L.Ed.2d 22 FORD MOTOR CREDIT COMPANY et al., Petitioners,v.Dennis MILHOLLIN* et al. No. 78-1487. Argued Dec. 4, 1979. Decided Feb. 20, 1980. Syllabus Respondents financed their purchases of automobiles through standard retail installment contracts that were assigned to petitioner finance company. Each contract provided that respondents were to pay a precomputed finance charge, and, as required by the Truth in Lending Act (TILA) and implementing Federal Reserve Board (FRB) Regulation Z, the front page of each contract disclosed and explained certain features of the contract, including a disclosure that the buyer could prepay his obligations under the contract in full at any time prior to maturity of the final installment and that if he did so he would receive a rebate of the unearned portion of the finance charge. The face of the contract also stated that temporary default on a particular installment would result in a delinquency charge, but no mention was made of a clause in the contract giving the creditor a right to accelerate payment of the entire debt upon the buyer's default. Respondents thereafter brought separate suits in District Court, alleging, inter alia, that petitioner finance company had violated TILA and Regulation Z by failing to disclose on the front page of the contract that the creditor retained the right to accelerate payment of the debt. The District Court in two of the suits held that facial disclosure of the acceleration clauses was mandated by the provisions of TILA, 15 U.S.C. §§ 1638(a)(9), 1639(a)(7), that compel publication of "default, delinquency, or similar charges, payable in the event of late payments." On a consolidated appeal, the Court of Appeals agreed that TILA imposes a general acceleration-clause disclosure requirement, but rather than holding that acceleration is a default charge, the Court of Appeals based its decision on the principle that under Regulation Z the creditor must disclose whether a rebate of unearned interest will be made upon acceleration and also must disclose the method by which the amount of unearned interest will be computed if the debt is accelerated. In so holding, the court rejected the FRB staff's contrary interpretation of the pertinent statutory and regulatory provisions that specific disclosure of an acceleration rebate policy is only necessary when that policy varies from the custom with respect to voluntary prepayment rebates. Held: TILA does not mandate a general rule of disclosure for acceleration clauses. Pp. 559-570. (a) The issue of acceleration disclosure is not governed by clear expression in the statute or regulations. An acceleration clause cannot be equated with a "default, delinquency, or similar charg[e]," subject to disclosure under §§ 1638(a)(9) and 1639(a)(7) and Regulation Z, and the prepayment rebate disclosure requirement of Regulation Z also fails to afford direct support for an invariable specific acceleration disclosure rule. Pp. 559-562. (b) In the absence of an express statutory mandate that acceleration procedures be invariably disclosed, a high degree of deference to the FRB staff's consistent administrative interpretation that the statute and regulations impose no such uniform requirement is warranted. Although the staff might have decided that acceleration rebates are so analytically distinct from identical voluntary prepayment rebates as to warrant separate disclosure, it was reasonable to conclude, alternatively, that ordinary consumers would be concerned chiefly about differing financial consequences. Pp. 562-570. 588 F.2d 753, reversed and remanded. William M. Burke, Newport Beach, Cal., for petitioners. Stuart A. Smith, Washington, D. C., for the United States, as amicus curiae, in support of the petitioners, by special leave of Court. Richard A. Slottee, Portland, Or., for respondents. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The issue for decision in this case is whether the Truth in Lending Act (TILA), 82 Stat. 146, as amended, 15 U.S.C. § 1601 et seq., requires that the existence of an acceleration clause always be disclosed on the face of a credit agreement. The Federal Reserve Board staff has consistently construed the statute and regulations as imposing no such uniform requirement. Because we believe that a high degree of deference to this administrative interpretation is warranted, we hold that TILA does not mandate a general rule of disclosure for acceleration clauses. 2 * The several respondents in this case purchased automobiles from various dealers, financing their purchases through standard retail installment contracts that were assigned to petitioner Ford Motor Credit Co. (FMCC), a finance company. Each contract provided that respondents were to pay a precomputed finance charge. As required by the TILA and Federal Reserve Board Regulation Z, which implements the Act, the front page of each contract disclosed and explained certain features of the agreement. See 15 U.S.C. § 1631; 12 CFR § 226.6(a) (1979). Among these disclosures was a paragraph informing the buyer that he 3 "may prepay his obligations under this contract in full at any time prior to maturity of the final instalment hereunder, and, if he does so, shall receive a rebate of the unearned portion of the Finance Charge computed under the sum of the digits method. . . ." 4 The face of the contract also stated that temporary default on a particular installment would result in a predetermined delinquency charge. Not mentioned on the disclosure page was a clause in the body of the contract giving the creditor a right to accelerate payment of the entire debt upon the buyer's default.1 5 Respondents subsequently commenced four separate suits against FMCC in the United States District Court for the District of Oregon, alleging, inter alia, that FMCC had violated TILA and Regulation Z by failing to disclose on the front page of the contract that the creditor retained the right to accelerate payment of the debt.2 In two of the suits,3 the District Court held that facial disclosure of the acceleration clauses was mandated by the provision of TILA that compels publication of "default, delinquency, or similar charges payable in the event of late payments," 15 U.S.C. §§ 1638(a)(9), 1639(a)(7). App. 30-31, 37, 69-71. Respondents in the other two actions prevailed on different grounds.4 All four cases were consolidated on appeal to the Ninth Circuit. 6 The Court of Appeals agreed with the District Court that TILA imposes a general acceleration-clause disclosure requirement.5 Rather than resting on the District Court's holding that acceleration is a default charge, however, the Court of Appeals based its decision on the narrower principle that under Regulation Z "[t]he creditor must disclose whether a rebate of unearned interest will be made upon acceleration and also disclose the method by which the amount of unearned interest will be computed if the debt is accelerated." 588 F.2d 753, 757 (1978), quoting St. Germain v. Bank of Hawaii, 573 F.2d 572, 577 (CA9 1977). See 12 CFR § 226.8(b)(7) (1979). Implicit in the conclusion of the Court of Appeals—and explicit in its preceding St. Germain decision—was the rejection of a contrary administrative interpretation of the pertinent statutory and regulatory provisions. In adopting its particular approach, the Court of Appeals mapped a path through the disclosure thicket that diverges from the routes traveled by the Courts of Appeals for several other Circuits.6 We granted certiorari, 442 U.S. 940, 99 S.Ct. 2880, 61 L.Ed.2d 309 (1979), to resolve the conflict. We reverse. II 7 The Truth in Lending Act has the broad purpose of promoting "the informed use of credit" by assuring "meaningful disclosure of credit terms" to consumers. 15 U.S.C. § 1601. Because of their complexity and variety, however, credit transactions defy exhaustive regulation by a single statute. Congress therefore delegated expansive authority to the Federal Reserve Board to elaborate and expand the legal framework governing commerce in credit. 15 U.S.C. § 1604; Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). The Board executed its responsibility by promulgating Regulation Z, 12 CFR Part 226 (1979), which at least partly fills the statutory gaps. Even Regulation Z, however, cannot speak explicitly to every credit disclosure issue. At the threshold, therefore, interpretation of TILA and Regulation Z demands an examination of their express language; absent a clear expression, it becomes necessary to consider the implicit character of the statutory scheme. For the reasons following, we conclude that the issue of acceleration disclosure is not governed by clear expression in the statute or regulation, and that it is appropriate to defer to the Federal Reserve Board and staff in determining what resolution of that issue is implied by the truth-in-lending enactments. 8 Respondents have advanced two theories to buttress their claim that the Act and Regulation expressly mandate disclosure of acceleration clauses. In the District Court, they contended that acceleration clauses were comprehended by the general statutory prescription that a creditor shall disclose "default, delinquency, or similar charges payable in the event of late payments," 15 U.S.C. §§ 1638(a)(9), 1639(a)(7), and were included within the provision of Regulation Z requiring disclosure of the "amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments," 12 CFR § 226.8(b)(4) (1979). Before this Court, respondents follow the Court of Appeals in arguing that 12 CFR § 226.8(b)(7) may be the source of an obligation to disclose procedures governing the rebate of unearned finance charges that accrue under acceleration. That section commands 9 "[i]dentification of the method of computing any unearned portion of the finance charge in the event of prepayment in full of an obligation which includes precomputed finance charges and a statement of the amount or method of computation of any charge that may be deducted from the amount of any rebate of such unearned finance charge that will be credited to an obligation or refunded to the customer." 10 A fair reading of the pertinent provisions does not sustain respondents' contention that acceleration clauses are within their terms. 11 An acceleration clause cannot be equated with a "default, delinquency, or similar charg[e]," subject to disclosure under 15 U.S.C. §§ 1638(a)(9), 1639(a)(7), and 12 CFR § 226.8(b)(4). The prerogative of acceleration affords the creditor a mechanism for collecting the outstanding portion of a debt on which there has been a partial default. In itself, acceleration entails no monetary penalty, although a creditor may independently impose such a penalty, for example, by failing to rebate unearned finance charges. A "default, delinquency, or similar charge[e]," on the other hand, self-evidently refers to a specific assessable sum. Thus, within the trade, delinquency charges are understood to be "the compensation a creditor receives on a precomputed contract for the debtor's delay in making timely instalment payments," 1 CCH Consumer Credit Guide &Par; 4230, 4231 (1977) (emphasis added). Acceleration is not compensatory; a creditor accelerates to avoid further delay by demanding immediate payment of the outstanding debt. See id., ¶ 4231; Uniform Consumer Credit Code of 1968, § 2.203, official comment 2, 7 U.L.A. 315-316 (1978); § 2.204(3), id., at 317. 12 The language employed in TILA §§ 1638(a)(9) and 1639(a)(7), and in 12 CFR § 226.8(b)(4) (1979), confirms the interpretation of "charges" as specific penalty sums. The statutory provisions speak of "charges payable in the event of late payments." (Emphasis added.) Even if one considers the burdensomeness of acceleration as a form of "charge" upon the debtor, it would hardly make sense to speak of that burden as "payable" to the creditor. Similarly Regulation Z orders disclosure of the "amount, or method of computing the amount, of any default, delinquency, or similar charges . . . ." (Emphasis added.) That command has no sensible application to the remedy of acceleration. In short, we would have to stretch these provisions beyond their obvious limits to construe them as a mandate for the disclosure of acceleration clauses.7 13 The prepayment rebate disclosure regulation, 12 CFR § 226.8(b)(7) (1979), also fails to afford direct support for an invariable specific acceleration disclosure rule. To be sure, payment by the debtor in response to acceleration might be deemed a prepayment within the ambit of that regulation. But so long as the creditor's rebate practice under acceleration is identical to its policy with respect to voluntary prepayments, separate disclosure of the acceleration policy does not seem obligatory under a literal reading of the regulation. Section 226.8(b)(7), therefore, squares with the position of the Federal Reserve Board staff that specific disclosure of acceleration rebate policy is only necessary when that policy varies from the custom with respect to voluntary prepayment rebates. FRB Official Staff Interpretation No. FC-0054, 12 CFR Part 226 Appendix, p. 627 (1979). III 14 Notwithstanding the absence of an express statutory mandate that acceleration procedures be invariably disclosed, the Court of Appeals has held that the "creditor must [always] disclose whether a rebate of unearned interest will be made upon acceleration and also disclose the method by which the amount of unearned interest will be computed if the debt is accelerated." St. Germain v. Bank of Hawaii, 573 F.2d, at 577; accord, 588 F.2d, at 757-758. In so deciding, the Court of Appeals in St. Germain explicitly rejected the view of the Federal Reserve Board staff that the right of acceleration need not be disclosed, and that rebate practice under acceleration must be disclosed only if it differs from the creditor's rebate policy with respect to voluntary prepayment. FRB Official Staff Interpretation No. FC-0054, supra ; see FRB Public Information Letter No. 851, [1974-1977 Transfer Binder] CCH Consumer Credit Guide ¶ 31,173; FRB Public Information Letter No. 1208; id., ¶ 31,647; FRB Public Information Letter No. 1324, 5 CCH Consumer Credit Guide ¶ 31,827 (1979).8 Rather, St. Germain declared that it would "choose the direction that makes more sense to us in trying to achieve the congressional purpose of providing meaningful disclosure to the debtor about the costs of his borrowing." 573 F.2d, at 576-577. 15 It is a commonplace that courts will further legislative goals by filling the interstitial silences within a statute or a regulation. Because legislators cannot foresee all eventualities, judges must decide unanticipated cases by extrapolating from related statutes or administrative provisions. But legislative silence is not always the result of a lack of prescience; it may instead betoken permission or, perhaps, considered abstention from regulation. In that event, judges are not accredited to supersede Congress or the appropriate agency by embellishing upon the regulatory scheme. Accordingly, caution must temper judicial creativity in the face of legislative or regulatory silence. 16 At the very least, that caution requires attentiveness to the views of the administrative entity appointed to apply and enforce a statute. And deference is especially appropriate in the process of interpreting the Truth in Lending Act and Regulation Z. Unless demonstrably irrational, Federal Reserve Board staff opinions construing the Act or Regulation should be dispositive for several reasons. 17 The Court has often repeated the general proposition that considerable respect is due " 'the interpretation given [a] statute by the officers or agency charged with its administration.' " Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978), quoting Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); see, e. g., Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961). An agency's construction of its own regulations has been regarded as especially due that respect. See Bowles v. Seminole Rock Co., 325 U.S. 410, 413-414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). This traditional acquiescence in administrative expertise is particularly apt under TILA, because the Federal Reserve Board has played a pivotal role in "setting [the statutory] machinery in motion. . . ." Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933). As we emphasized in Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), Congress delegated broad administrative lawmaking power to the Federal Reserve Board when it framed TILA. The Act is best construed by those who gave it substance in promulgating regulations thereunder.9 18 Furthermore, Congress has specifically designated the Federal Reserve Board and staff as the primary source for interpretation and application of truth-in-lending law. Because creditors need sure guidance through the "highly technical" Truth in Lending Act, S.Rep.No. 93-278, p. 13 (1973), legislators have twice acted to promote reliance upon Federal Reserve pronouncements. In 1974, TILA was amended to provide creditors with a defense from liability based upon good-faith compliance with a "rule, regulation, or interpretation" of the Federal Reserve Board itself. § 406, 88 Stat. 1518, codified at 15 U.S.C. § 1640(f). The explicit purpose of the amendment was to relieve the creditor of the burden of choosing "between the Board's construction of the Act and the creditor's own assessment of how a court may interpret the Act." S.Rep.No. 93-278, supra, at 13. The same rationale prompted a further change in the statute in 1976, authorizing a liability defense for "conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Board to issue such interpretations or approvals . . . ." § 3(b), 90 Stat. 197, codified at 15 U.S.C. § 1640(f); see 122 Cong.Rec. 2836 (1976) (remarks of Sen. Garn); id., at 2852 (remarks of Rep. Annunzio, chairman of Consumer Affairs Subcommittee); ibid. (remarks of Rep. Rousselot); 121 Cong.Rec. 36927 (1975) (remarks of Rep. Annunzio); id., at 36927-36928 (remarks of Rep. Wylie).10 19 The enactment and expansion of § 1640(f) has significance beyond the express creation of a good-faith immunity.11 That statutory provision signals an unmistakable congressional decision to treat administrative rulemaking and interpretation under TILA as authoritative. Moreover, language in the legislative history evinces a decided preference for resolving interpretive issues by uniform administrative decision, rather than piecemeal through litigation.12 See S.Rep.No. 93-278, supra, at 13-14; 122 Cong.Rec. 2852 (1976) (remarks of Rep. Annunzio); 121 Cong.Rec. 36927 (1975) (remarks of Rep. Annunzio). Courts should honor that congressional choice. Thus, while not abdicating their ultimate judicial responsibility to determine the law, cf. generally SEC v. Chenery Corp., 318 U.S. 80, 92-94, 63 S.Ct. 454, 461-462, 87 L.Ed. 626 (1943), judges ought to refrain from substituting their own interstitial lawmaking for that of the Federal Reserve, so long as the latter's lawmaking is not irrational. 20 Finally, wholly apart from jurisprudential considerations or congressional intent, deference to the Federal Reserve is compelled by necessity; a court that tries to chart a true course to the Act's purpose embarks upon a voyage without a compass when it disregards the agency's views. The concept of "meaningful disclosure" that animates TILA, see St. Germain, 573 F.2d, at 577, cannot be applied in the abstract. Meaningful disclosure does not mean more disclosure. Rather, it describes a balance between "competing considerations of complete disclosure . . . and the need to avoid . . . [informational overload.]" S.Rep. 96-73, p. 3 (1979) (accompanying S. 108, Truth in Lending Simplification and Reform Act); see S.Rep.No. 95-720, pp. 2-3 (1978); 63 Federal Reserve Board, Ann.Rep. 326, 349-350 (1976); Comment, Acceleration Clause Disclosure Under the Truth in Lending Act, 77 Colum.L.Rev. 649, 662-663 (1977). And striking the appropriate balance is an empirical process that entails investigation into consumer psychology and that presupposes broad experience with credit practices. Administrative agencies are simply better suited than courts to engage in such a process. 21 The Federal Reserve Board staff treatment of acceleration disclosure rationally accommodates the conflicting demands for completeness and for simplicity. In determining that acceleration rebate practices need be disclosed only when they diverge from other prepayment rebate practices, the Federal Reserve has adopted what may be termed a "bottom-line" approach: that the most important information in a credit purchase is that which explains differing net charges and rates. Cf. S.Rep.No. 96-73, supra, at 3-4; 63 Federal Reserve Board, Ann.Rep., supra, at 350-352. Although the staff might have decided that acceleration rebates are so analytically distinct from identical voluntary prepayment rebates as to warrant separate disclosure, it was reasonable to conclude, alternatively, that ordinary consumers would be concerned chiefly about differing financial consequences.13 Faced with an apparent lacuna in the express prescriptions of TILA and Regulation Z, the Court of Appeals had no ground for displacing the Federal Reserve staff's expert judgment. 22 Accordingly, we decide that the Court of Appeals erred in rejecting the views of the Federal Reserve Board and staff, and holding that separate disclosure of acceleration rebate practices is always required.14 23 Reversed and remanded. 24 Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring. 25 I join the Court's opinion but write separately because I do not fully agree with the statement in note 13 of the opinion, ante, at 569, that the Federal Reserve Board's approach to the disclosure of acceleration rebates is "equally logical" with other alternatives it might have chosen. In particular, I am concerned that the Board's emphasis on a creditor's rebate policy rather than its contract rights steers the Truth in Lending Act away from the moorings of contract law in a manner that may not prove salutary for the welfare of consumers of financial credit. 26 To be sure, consumers contemplating installment purchases are concerned with the "bottom line," ante, at 569, of how much they will be required to pay. But there is little doubt, in my view, that consumers who read the required disclosurers think that they are reading a description of their legal rights and obligations, and not merely an explanation of "practices" or "policies" of the creditor that may be changed to their detriment at the creditor's will. Although there may be reason to believe that a major finance company, such as Ford Motor Credit Co., will adhere to its rebate practices despite the legal right to demand more upon acceleration than it said it would, I am not sanguine that a less responsible organization always will do the same. The result could be confusion and unanticipated financial loss, as well as fruitless litigation. 27 Ultimately, I think the interpretation adopted by the Fifth Circuit in McDaniel v. Fulton Nat. Bank, 571 F.2d 948 (en banc), clarified, 576 F.2d 1156 (1978) (en banc), which requires disclosure of the creditor's right to retain finance charges upon acceleration when it differs from the right to such charges upon prepayment, may prove to be a sounder and more durable application of the statute than the position currently adopted by the Board. Nevertheless, I agree with the Court that the Board's approach is reasonable. In order to uphold the Board's position, "we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings." Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), quotingUnemployment Comm'n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946). Accordingly, I agree that the courts should not add to the disclosure obligations that the Board has outlined through its staff opinions. * Although respondents spell their name "Millhollin," throughout this litigation their name has been misspelled as "Milhollin." Because legal research catalogs and computers are governed by the principle of consistency, not correctness, we feel constrained to adhere to the erroneous spelling. 1 "In the event Buyer defaults in any payment . . . Seller shall have the right to declare all amounts due or to become due hereunder to be immediately due and payable. . . ." 2 The individual suits were Milhollin v. Ford Motor Credit Co., Civ.No. 75-334 (1976); Eaton v. Ford Motor Credit Co., Civ.No. 76-575 (1977); Andresen v. Ford Motor Credit Co., Civ.No. 76-1090 (1977); and Messinger v. Ford Motor Credit Co., Civ.No. 76-475 (1977). 3 Milhollin and Eaton, supra n. 2. 4 Andresen and Messinger, supra n. 2. 5 The Court of Appeals rejected the grounds for TILA liability relied upon by the District Court in Andresen and Messinger, and remanded those two cases for consideration under the acceleration-clause theory. 6 The Courts of Appeals for the Eighth and Tenth Circuits have flatly declared that a creditor's rebate practice upon acceleration never need be disclosed. Griffith v. Superior Ford, 577 F.2d 455 (CA 8 1978); United States ex rel. Hornell v. One 1976 Chevrolet, 585 F.2d 978 (CA10 1978). The Courts of Appeals for the Third and District of Columbia Circuits have held that acceleration rebate policies need not be separately disclosed when state law or the contract compels the creditor to rebate under acceleration, as under voluntary prepayment. Johnson v. McCrackin-Sturman Ford, Inc., 527 F.2d 257 (CA3 1975); Price v. Franklin Investment Co., 187 U.S.App.D.C. 383, 574 F.2d 594 (1978). The Court of Appeals for the Fifth Circuit has also adopted the position that separate disclosure is not required when the creditor is obliged to treat acceleration and voluntary prepayment alike for rebate purposes; that court has emphasized that the critical factor is the creditor's legal obligation to rebate, rather than its unbidden rebate policy. McDaniel v. Fulton Nat. Bank, 571 F.2d 948 (en banc), clarified, 576 F.2d 1156 (1978) (en banc). 7 Seven of the Courts of Appeals, including that for the Ninth Circuit, have refused to treat acceleration simpliciter as a "charge" within 15 U.S.C. § 1638(a)(9) and 12 CFR § 226.8(b)(4) (1979). Johnson v. McCrackin-Sturman Ford, Inc., 527 F.2d, at 265-268 (CA3); McDaniel v. Fulton Nat. Bank, 576 F.2d, at 1157 (CA5) (en banc); Croysdale v. Franklin Sav. Assn., 601 F.2d 1340, 1342-1343, and n. 2 (CA7 1979); Griffith v. Superior Ford, 577 F.2d, at 457-459 (CA8); St. Germain v. Bank of Hawaii, 573 F.2d 572, 573-574 (CA9 1977); United States ex rel. Hornell v. One 1976 Chevrolet, 585 F.2d, at 981 (CA10); Price v. Franklin Investment Co., 187 U.S.App.D.C., at 393, 574 F.2d, at 604. 8 Official Staff Interpretation No. FC-0054 provides, in pertinent part: "It is staff's opinion that the phrase 'default, delinquency, or similar charges in the event of late payments,' found in § 128(a)(9) and § 129(a)(7) of the Truth in Lending Act and § 226.8(b)(4) of Regulation Z, refers to specific sums assessed against a borrower solely because of failure to make payments when due. It is staff's opinion that the mere right to accelerate contained in a contractual provision which sets out the creditor's right to accelerate the entire obligation upon a certain event (generally the obligor's failure to make a payment when due) is not a charge payable in the event of late payment. Therefore, it need not be disclosed under § 226.8(b)(4). "Your [sic ] refer to a prior Public Information Letter, No. 851, which discusses the right of acceleration. . . . Staff understands that letter to say that early payment of the balance of a precomputed finance charge obligation by a customer upon acceleration by the creditor is essentially the same as a prepayment of the obligation. Therefore, if the creditor does not rebate unearned finance charges in accordance with the rebate provisions disclosed under § 226.8(b)(7) when the customer pays the balance of the obligation upon acceleration, any amounts retained beyond those which would have been rebated under the disclosed rebate provisions do represent the type of charge that must be disclosed under § 226.8(b)(4)." (Emphasis added.) Information Letter No. 851 states, in part: "For the purposes of Truth in Lending disclosures, this staff views an acceleration of payments as essentially a prepayment of the contract obligation. As such, the disclosure provisions of § 226.8(b)(7) . . . of the Regulation, which require the creditor to identify the method of rebating any unearned portion of the finance charge or to disclose that no rebate would be made, apply. If the creditor rebates under one method for acceleration and another for voluntary prepayment, both methods would need to be identified under § 226.8(b)(7). . . . "If, under the acceleration provision, a rebate is made by the creditor in accordance with the disclosure of the rebate provisions of § 226.8(b)(7), we believe that there is no additional 'charge' for late payments made by the customer and therefore no need to disclose under the provisions of § 226.8(b)(4). On the other hand, if upon acceleration of the unpaid remainder of the total of payments, the creditor does not rebate unearned finance charges in accordance with the rebate provisions disclosed in § 226.8(b)(7), any amounts retained beyond those which would have been rebated under the disclosed rebate provisions represent a 'charge' which should be disclosed under § 226.8(b)(4)." Information Letter No. 1208 states, in part: "In FC-0054, staff took the position that a creditor's right of acceleration upon default by the obligor need not be disclosed as a default, delinquency, or late payment charge within the context of § 226.8(b)(4). The interpretation went on to state, however, that since early payment of the balance of an obligation upon acceleration is essentially the same as voluntary prepayment, if the creditor does not rebate unearned finance charges in the former situation in accordance with the rebate provisions disclosed under § 226.8(b)(7), any extra amounts retained represent the type of charge that must be disclosed under § 226.8(b)(4)." Information Letter No. 1324 states, in part: "The staff's position . . . is that if a creditor rebates unearned finance charges in connection with prepayment upon acceleration using the same method as for voluntary prepayment and that method has been properly disclosed in accordance with § 226.8(b)(7), there is no default charge. However, any amounts retained by a creditor upon acceleration which would have been rebated under the disclosed rebate provisions would represent the type of default charge which must be disclosed pursuant to § 226.8(b)(4)." In St. Germain, the Court of Appeals spurned these administrative opinions as a source of interpretive guidance on the ground that the several letters were "conflicting signals." 573 F.2d, at 576. As we read the Staff Opinion and Letters, however, they are fundamentally consistent, if somewhat inartfully drafted. The staff's position in each appears to be that separate disclosure of acceleration rebate practices is unnecessary when those practices parallel voluntary prepayment rebate policy. On the other hand, where acceleration rebates are less than voluntary prepayment rebates, acceleration policy must be separately explained under § 226.8(b)(4) and, perhaps as well, under § 226.8(b)(7). Neither the Opinion nor the Letters suggest that acceleration rebate policy must be separately disclosed in all instances. 9 To be sure, the administrative interpretations proffered in this case were issued by the Federal Reserve staff rather than the Board. But to the extent that deference to administrative views is bottomed on respect for agency expertise, it is unrealistic to draw a radical distinction between opinions issued under the imprimatur of the Board and those submitted as official staff memoranda. See FRB Public Information Letter No. 444 [1969-1974 Transfer Binder] CCH Consumer Credit Guide ¶ 30,640. At any rate, it is unnecessary to explore the Board/staff difference at length, because Congress has conferred special status upon official staff interpretations. See 15 U.S.C. § 1640(f); 12 CFR § 226.1(d) (1979). 10 Title 12 CFR § 226.1(d) (1979) authorizes the issuance of official staff interpretations that trigger the application of § 1640(f). Official interpretations are published in the Federal Register, and opportunity for public comment may be requested. 12 CFR § 226.1(d). Unofficial interpretations have no special status under § 1640(f). 11 Although FMCC claims that its pre-1976 disclosure policy comported with Official Staff Interpretation No. FC-0054 (issued in 1977), it has not argued before this Court that it is entitled to the immunity afforded by the 1976 amendment to § 1640(f). We need not decide, therefore, whether the 1976 amendment may be invoked with respect to contracts formed before its enactment or whether conformity with a subsequently issued official staff interpretation constitutes "compliance" within the terms of § 1640(f). 12 That preference is understandable. As the divergence of judicial views on the acceleration disclosure issue illustrates, see n. 6, supra, litigation is not always the optimal process by means of which to formulate a coherent and predictable body of technical rules. 13 The Federal Reserve might reasonably have adopted the disclosure approach of the Court of Appeals for the Fifth Circuit, focusing upon a creditor's contractual acceleration rebate rights, rather than upon the creditor's operating rebate policy. See McDaniel v. Fulton Nat. Bank, 576 F.2d, at 1157. But, again, it was equally logical to conclude that so long as the creditor's actual practice upon acceleration was the same as its practice upon prepayment, it was not necessary to require disclosure of the creditor's unexercised rights in the disclosure statement itself. In arguing for affirmance, respondents contend that disclosure of a creditor's rebate policy at the time of credit contract formation is no guarantee against a change in that policy at some future date, perhaps after the TILA statute of limitations has run. See 15 U.S.C. § 1640(e). But when a genuine change in policy occurs after disclosure, the statute itself may arguably contemplate that the creditor be immune from liability. See 15 U.S.C. § 1634; S.Rep.No. 392, 90th Cong., 1st Sess., 18 (1967). On the other hand, if the creditor envisioned a change in policy at the time it disclosed practices contemporaneously in force, then the debtor might conceivably have a claim for fraud. In any event, it is open to the Federal Reserve to consider this question when reviewing its position on acceleration rebate disclosure. 14 Respondents argue before this Court that even under the Federal Reserve staff's view, petitioners violated TILA and Regulation Z because the credit contract itself contained language concerning acceleration rebates that assertedly contradicted the disclosures on the face of the contract. That contradiction, if present, could run afoul of 12 CFR § 226.8(b)(7) or § 226.6(c) (1979), as those provisions are understood by the agency staff. See FRB Public Information Letter No. 1324, supra, n. 8. But respondents prevailed in the District Court and in the Court of Appeals upon broader rulings that acceleration clause disclosure was generally required; neither court addressed the specific allegation of contradiction. Therefore, if properly presented, the contradiction issue is open for decision on remand.

78

444 U.S. 672 100 S.Ct. 856 63 L.Ed.2d 115 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.YESHIVA UNIVERSITY. YESHIVA UNIVERSITY FACULTY ASSOCIATION, Petitioner, v. YESHIVA UNIVERSITY. Nos. 78-857, 78-997. Argued Oct. 10, 1979. Decided Feb. 20, 1980. Syllabus Yeshiva University Faculty Association (Union) filed a representation petition with the National Labor Relations Board (Board), seeking certification as bargaining agent for the full-time faculty members of certain schools of Yeshiva University, a private university. The University opposed the petition on the ground that all of its faculty members are managerial or supervisory personnel and hence not employees within the meaning of the National Labor Relations Act (Act). The evidence at hearings before the Board's hearing officer showed, inter alia, that a central administrative hierarchy serves all of the University's schools, with University-wide policies being formulated by the central administration upon approval of the Board of Trustees. However, the individual schools within the University are substantially autonomous, and the faculty members at each school effectively determine its curriculum, grading system, admission and matriculation standards, academic calendars, and course schedules. Also, the overwhelming majority of faculty recommendations as to faculty hiring, tenure, sabbaticals, termination, and promotion are implemented. The Board granted the Union's petition and directed an election. Summarily rejecting the University's contention that its faculty members are managerial employees, the Board held that the faculty members are professional employees entitled to the Act's protection. After the Union won the election and was certified, the University refused to bargain. In subsequent unfair labor practice proceedings, the Board ordered the University to bargain and sought enforcement in the Court of Appeals, which denied the petition. The court agreed that the faculty members are professional employees under § 2(12) of the Act, found that the Board had ignored "the extensive control of Yeshiva's faculty" over academic and personnel decisions as well as its "crucial role . . . in determining other central policies of the institution," and accordingly held that the faculty members are endowed with "managerial status" sufficient to remove them from the Act's coverage. Held : The University's full-time faculty members are managerial employees excluded from the Act's coverage. Pp. 679-691. (a) The authority structure of a university does not fit neatly into the statutory scheme, because authority in the typical "mature" private university is divided between a central administration and one or more collegial bodies. The absence of explicit congressional direction does not preclude the Board from reaching any particular type of employment, and the Board has approved the formation of bargaining units composed of faculty members on the ground that they are "professional employees" under § 2(12) of the Act. Nevertheless professionals may be exempted from coverage under the judicially implied exclusion for "managerial employees" when they are involved in developing and implementing employer policy. Pp. 679-682. (b) Here, application of the managerial exclusion to the University's faculty members is not precluded on the theory that they are not aligned with management because they are expected to exercise "independent professional judgment" while participating in academic governance and to pursue professional values rather than institutional interests. The controlling consideration is that the faculty exercises authority which in any other context unquestionably would be managerial, its authority in academic matters being absolute. The faculty's professional interests—as applied to governance at a university like Yeshiva which depends on the professional judgment of its faculty to formulate and apply policies—cannot be separated from those of the institution, and thus it cannot be said that a faculty member exercising independent judgment acts primarily in his own interest and does not represent the interest of his employer. Pp. 682-690. (c) The deference ordinarily due the Board's expertise does not require reversal of the Court of Appeals' decision. This Court respects the Board's expertise when its conclusions are rationally based on articulated facts and consistent with the Act, but here the Board's decision satisfies neither criterion. P. 691. 2nd Cir., 582 F.2d 686, affirmed. Norton J. Come, Washington, D. C., for petitioner in no. 78-857. Ronald H. Shechtman, New York City, for petitioner in no. 78-997. Marvin E. Frankel, New York City, for respondent in both cases. Mr. Justice POWELL delivered the opinion of the Court. 1 Supervisors and managerial employees are excluded from the categories of employees entitled to the benefits of collective bargaining under the National Labor Relations Act.1 The question presented is whether the full-time faculty of Yeshiva University fall within those exclusions. 2 * Yeshiva is a private university which conducts a broad range of arts and sciences programs at its five undergraduate and eight graduate schools in New York City. On October 30, 1974, the Yeshiva University Faculty Association (Union) filed a representation petition with the National Labor Relations Board (Board). The Union sought certification as bargaining agent for the full-time faculty members at 10 of the 13 schools.2 The University opposed the petition on the ground that all of its faculty members are managerial or supervisory personnel and hence not employees within the meaning of the National Labor Relations Act (Act). A Board-appointed hearing officer held hearings over a period of five months, generating a voluminous record. 3 The evidence at the hearings showed that a central administrative hierarchy serves all of the University's schools. Ultimate authority is vested in a Board of Trustees, whose members (other than the President) hold no administrative positions at the University. The President sits on the Board of Trustees and serves as chief executive officer, assisted by four Vice Presidents who oversee, respectively, medical affairs and science, student affairs, business affairs, and academic affairs. An Executive Council of Deans and administrators makes recommendations to the President on a wide variety of matters. 4 University-wide policies are formulated by the central administration with the approval of the Board of Trustees, and include general guidelines dealing with teaching loads, salary scales, tenure, sabbaticals, retirement, and fringe benefits. The budget for each school is drafted by its Dean or Director, subject to approval by the President after consultation with a committee of administrators.3 The faculty participate in University-wide governance through their representatives on an elected student-faculty advisory council. The only University-wide faculty body is the Faculty Review Committee, composed of elected representatives who adjust grievances by informal negotiation and also may make formal recommendations to the Dean of the affected school or to the President. Such recommendations are purely advisory. 5 The individual schools within the University are substantially autonomous. Each is headed by a Dean or Director, and faculty members at each school meet formally and informally to discuss and decide matters of institutional and professional concern. At four schools, formal meetings are convened regularly pursuant to written bylaws. The remaining faculties meet when convened by the Dean or Director. Most of the schools also have faculty committees concerned with special areas of educational policy. Faculty welfare committees negotiate with administrators concerning salary and conditions of employment. Through these meetings and committees, the faculty at each school effectively determine its curriculum, grading system, admission and matriculation standards, academic calendars, and course schedules.4 6 Faculty power at Yeshiva's schools extends beyond strictly academic concerns. The faculty at each school make recommendations to the Dean or Director in every case of faculty hiring, tenure, sabbaticals, termination and promotion. Although the final decision is reached by the central administration on the advice of the Dean or Director, the overwhelming majority of faculty recommendations are implemented.5 Even when financial problems in the early 1970's restricted Yeshiva's budget, faculty recommendations still largely controlled personnel decisions made within the constraints imposed by the administration. Indeed, the faculty of one school recently drew up new and binding policies expanding their own role in these matters. In addition, some faculties make final decisions regarding the admission, expulsion, and graduation of individual students. Others have decided questions involving teaching loads, student absence policies, tuition and enrollment levels, and in one case the location of a school.6 II 7 A three-member panel of the Board granted the Union's petition in December 1975, and directed an election in a bargaining unit consisting of all full-time faculty members at the affected schools. 221 N.L.R.B. 1053 (1975). The unit included Assistant Deans, senior professors, and department chairmen, as well as associate professors, assistant professors, and instructors.7 Deans and Directors were excluded. The Board summarily rejected the University's contention that its entire faculty are managerial, viewing the claim as a request for reconsideration of previous Board decisions on the issue. Instead of making findings of fact as to Yeshiva, the Board referred generally to the record and found no "significan[t]" difference between this faculty and others it had considered. The Board concluded that the faculty are professional employees entitled to the protection of the Act because "faculty participation in collegial decision making is on a collective rather than individual basis, it is exercised in the faculty's own interest rather than 'in the interest of the employer,' and final authority rests with the board of trustees." Id., at 1054 (footnote omitted).8 8 The Union won the election and was certified by the Board. The University refused to bargain, reasserting its view that the faculty are managerial. In the subsequent unfair labor practice proceeding, the Board refused to reconsider its holding in the representation proceeding and ordered the University to bargain with the Union. 231 N.L.R.B. 597 (1977). When the University still refused to sit down at the negotiating table, the Board sought enforcement in the Court of Appeals for the Second Circuit, which denied the petition. 582 F.2d 686 (1978). 9 Since the Board had made no findings of fact, the court examined the record and related the circumstances in considerable detail. It agreed that the faculty are professional employees under § 2(12) of the Act. 29 U.S.C. § 152(12). But the court found that the Board had ignored "the extensive control of Yeshiva's faculty" over academic and personnel decisions as well as the "crucial role of the full-time faculty in determining other central policies of the institution." 582 F.2d, at 698. The court concluded that such power is not an exercise of individual professional expertise. Rather, the faculty are, "in effect, substantially and pervasively operating the enterprise." Ibid. Accordingly, the court held that the faculty are endowed with "managerial status" sufficient to remove them from the coverage of the Act. We granted certiorari, 440 U.S. 906, 99 S.Ct. 1212, 59 L.Ed.2d 453 (1979), and now affirm. III 10 There is no evidence that Congress has considered whether a university faculty may organize for collective bargaining under the Act. Indeed, when the Wagner and Taft-Hartley Acts were approved, it was thought that congressional power did not extend to university faculties because they were employed by nonprofit institutions which did not "affect commerce." See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 504-505, 99 S.Ct. 1313, 1320-1321, 59 L.Ed.2d 533 (1979).9 Moreover, the authority structure of a university does not fit neatly within the statutory scheme we are asked to interpret. The Board itself has noted that the concept of collegiality "does not square with the traditional authority structures with which th[e] Act was designed to cope in the typical organizations of the commercial world." Adelphi University, 195 N.L.R.B. 639, 648 (1972). 11 The Act was intended to accommodate the type of management-employee relations that prevail in the pyramidal hierarchies of private industry. Ibid. In contrast, authority in the typical "mature" private university is divided between a central administration and one or more collegial bodies. See J. Baldridge, Power and Conflict in the University 114 (1971). This system of "shared authority" evolved from the medieval model of collegial decisionmaking in which guilds of scholars were responsible only to themselves. See N. Fehl, The Idea of a University in East and West 36-46 (1962); D. Knowles, The Evolution of Medieval Thought 164-168 (1962). At early universities, the faculty were the school. Although faculties have been subject to external control in the United States since colonial times, J. Brubacher & W. Rudy, Higher Education in Transition: A History of American Colleges and Universities, 1636-1976, pp. 25-30 (3d ed. 1976), traditions of collegiality continue to play a significant role at many universities, including Yeshiva.10 For these reasons, the Board has recognized that principles developed for use in the industrial setting cannot be "imposed blindly on the academic world." Syracuse University, 204 N.L.R.B. 641, 643 (1973). 12 The absence of explicit congressional direction, of course, does not preclude the Board from reaching any particular type of employment. See NLRB v. Hearst Publications, Inc., 322 U.S. 111, 124-131, 64 S.Ct. 851, 857-860, 88 L.Ed. 1170 (1944). Acting under its responsibility for adapting the broad provisions of the Act to differing workplaces, the Board asserted jurisdiction over a university for the first time in 1970. Cornell University, 183 N.L.R.B. 329 (1970). Within a year it had approved the formation of bargaining units composed of faculty members. C. W. Post Center, 189 N.L.R.B. 904 (1971).11 The Board reasoned that faculty members are "professional employees" within the meaning of § 2(12) of the Act and therefore are entitled to the benefits of collective bargaining. 189 N.L.R.B., at 905; 29 U.S.C. § 152(12).12 13 Yeshiva does not contend that its faculty are not professionals under the statute. But professionals, like other employees, may be exempted from coverage under the Act's exclusion for "supervisors" who use independent judgment in overseeing other employees in the interest of the employer,13 or under the judicially implied exclusion for "managerial employees" who are involved in developing and enforcing employer policy.14 Both exemptions grow out of the same concern: That an employer is entitled to the undivided loyalty of its representatives. Beasley v. Food Fair of North Carolina, 416 U.S. 653, 661-662, 94 S.Ct. 2023, 2027-2028, 40 L.Ed.2d 443 (1974); see NLRB v. Bell Aerospace Co., 416 U.S. 267, 281-282, 94 S.Ct. 1757, 1765, 40 L.Ed.2d 134 (1974). Because the Court of Appeals found the faculty to be managerial employees, it did not decide the question of their supervisory status. In view of our agreement with that court's application of the managerial exclusion, we also need not resolve that issue of statutory interpretation. IV 14 Managerial employees are defined as those who " 'formulate and effectuate management policies by expressing and making operative the decisions of their employer.' " NLRB v. Bell Aerospace Co., supra, at 288, 94 S.Ct., at 1768 (quoting Palace Laundry Dry Cleaning Corp., 75 N.L.R.B. 320, 323, n. 4 (1947)). These employees are "much higher in the managerial structure" than those explicitly mentioned by Congress, which "regarded [them] as so clearly outside the Act that no specific exclusionary provision was thought necessary." 416 U.S., at 283, 94 S.Ct., at 1766. Managerial employees must exercise discretion within, or even independently of, established employer policy and must be aligned with management. See id., at 286-287, 94 S.Ct., at 1767-1768 (citing cases). Although the Board has established no firm criteria for determining when an employee is so aligned, normally an employee may be excluded as managerial only if he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.15 15 The Board does not contend that the Yeshiva faculty's decisionmaking is too insignificant to be deemed managerial.16 Nor does it suggest that the role of the faculty is merely advisory and thus not managerial.17 Instead, it contends that the managerial exclusion cannot be applied in a straightforward fashion to professional employees because those employees often appear to be exercising managerial authority when they are merely performing routine job duties. The status of such employees, in the Board's view, must be determined by reference to the "alignment with management" criterion. The Board argues that the Yeshiva faculty are not aligned with management because they are expected to exercise "independent professional judgment" while participating in academic governance, and because they are neither "expected to conform to management policies [nor] judged according to their effectiveness in carrying out those policies." Because of this independence, the Board contends there is no danger of divided loyalty and no need for the managerial exclusion. In its view, union pressure cannot divert the faculty from adhering to the interests of the university, because the university itself expects its faculty to pursue professional values rather than institutional interests. The Board concludes that application of the managerial exclusion to such employees would frustrate the national labor policy in favor of collective bargaining. 16 This "independent professional judgment" test was not applied in the decision we are asked to uphold. The Board's opinion relies exclusively on its previous faculty decisions for both legal and factual analysis. 221 N.L.R.B., at 1054. But those decisions only dimly foreshadow the reasoning now proffered to the Court. Without explanation, the Board initially announced two different rationales for faculty cases,18 then quickly transformed them into a litany to be repeated in case after case: (i) faculty authority is collective, (ii) it is exercised in the faculty's own interest rather than in the interest of the university, and (iii) final authority rests with the board of trustees. Northeastern University, 218 N.L.R.B. 247, 250 (1975); University of Miami, 213 N.L.R.B. 634, 634 (1974); see Tusculum College, 199 N.L.R.B. 28, 30 (1972).19 In their arguments in this case, the Board's lawyers have abandoned the first and third branches of this analysis,20 which in any event were flatly inconsistent with its precedents,21 and have transformed the second into a theory that does not appear clearly in any Board opinion.22 V 17 The controlling consideration in this case is that the faculty of Yeshiva University exercise authority which in any other context unquestionably would be managerial. Their authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated. On Occasion their views have determined the size of the student body, the tuition to be charged, and the location of a school. When one considers the function of a university, it is difficult to imagine decisions more managerial than these. To the extent the industrial analogy applies, the faculty determines within each school the product to be produced, the terms upon which it will be offered, and the customers who will be served.23 18 The Board nevertheless insists that these decisions are not managerial because they require the exercise of independent professional judgment. We are not persuaded by this argument. There may be some tension between the Act's exclusion of managerial employees and its inclusion of professionals, since most professionals in managerial positions continue to draw on their special skills and training. But we have been directed to no authority suggesting that that tension can be resolved by reference to the "independent professional judgment" criterion proposed in this case.24 Outside the university context, the Board routinely has applied the managerial and supervisory exclusions to professionals in executive positions without inquiring whether their decisions were based on management policy rather than professional expertise.25 Indeed, the Board has twice implicitly rejected the contention that decisions based on professional judgment cannot be managerial.26 Since the Board does not suggest that the "independent professional judgment" test is to be limited to university faculty, its new approach would overrule sub silentio this body of Board precedent and could result in the indiscriminate recharacterization as covered employees of professionals working in supervisory and managerial capacities. 19 Moreover, the Board's approach would undermine the goal it purports to serve: To ensure that employees who exercise discretionary authority on behalf of the employer will not divide their loyalty between employer and union. In arguing that a faculty member exercising independent judgment acts primarily in his own interest and therefore does not represent the interest of his employer, the Board assumes that the professional interests of the faculty and the interests of the institution are distinct, separable entities with which a faculty member could not simultaneously be aligned. The Court of Appeals found no justification for this distinction, and we perceive none. In fact, the faculty's professional interests—as applied to governance at a university like Yeshiva—cannot be separated from those of the institution. 20 In such a university, the predominant policy normally is to operate a quality institution of higher learning that will accomplish broadly defined educational goals within the limits of its financial resources. The "business" of a university is education, and its vitality ultimately must depend on academic policies that largely are formulated and generally are implemented by faculty governance decisions. See K. Mortimer & T. McConnell, Sharing Authority Effectively 23-24 (1978). Faculty members enhance their own standing and fulfill their professional mission by ensuring that the university's objectives are met. But there can be no doubt that the quest for academic excellence and institutional distinction is a "policy" to which the administration expects the faculty to adhere, whether it be defined as a professional or an institutional goal. It is fruitless to ask whether an employee is "expected to conform" to one goal or another when the two are essentially the same.27 See NLRB v. Scott Paper Co., 440 F.2d 625, 630 (CA1 1971) (tractor owner-operators); Deaton Truck Line, Inc. v. NLRB, 337 F.2d 697, 699 (CA5 1964) (same), cert. denied, 381 U.S. 903, 85 S.Ct. 1448, 14 L.Ed.2d 285 (1965). 21 The problem of divided loyalty is particularly acute for a university like Yeshiva, which depends on the professional judgment of its faculty to formulate and apply crucial policies constrained only by necessarily general institutional goals. The university requires faculty participation in governance because professional expertise is indispensable to the formulation and implementation of academic policy.28 It may appear, as the Board contends, that the professor performing governance functions is less "accountable" for departures from institutional policy than a middle-level industrial manager whose discretion is more confined. Moreover, traditional systems of collegiality and tenure insulate the professor from some of the sanctions applied to an industrial manager who fails to adhere to company policy. But the analogy of the university to industry need not, and indeed cannot, be complete. It is clear that Yeshiva and like universities must rely on their faculties to participate in the making and implementation of their policies.29 The large measure of independence enjoyed by faculty members can only increase the danger that divided loyalty will lead to those harms that the Board traditionally has sought to prevent. 22 We certainly are not suggesting an application of the managerial exclusion that would sweep all professionals outside the Act in derogation of Congress' expressed intent to protect them. The Board has recognized that employees whose decisionmaking is limited to the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from coverage even if union membership arguably may involve some divided loyalty.30 Only if an employee's activities fall outside the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management. We think these decisions accurately capture the intent of Congress, and that they provide an appropriate starting point for analysis in cases involving professionals alleged to be managerial.31 VI 23 Finally, the Board contends that the deference due its expertise in these matters requires us to reverse the decision of the Court of Appeals. The question we decide today is a mixed one of fact and law. But the Board's opinion may be searched in vain for relevant findings of fact. The absence of factual analysis apparently reflects the Board's view that the managerial status of particular faculties may be decided on the basis of conclusory rationales rather than examination of the facts of each case. The Court of Appeals took a different view, and determined that the faculty of Yeshiva University, "in effect, substantially and pervasively operat[e] the enterprise." 582 F.2d at 698. We find no reason to reject this conclusion. As our decisions consistently show, we accord great respect to the expertise of the Board when its conclusions are rationally based on articulated facts and consistent with the Act. Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978). In this case, we hold that the Board's decision satisfies neither criterion. 24 Affirmed. 25 Mr. Justice BRENNAN, with whom Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN join, dissenting. 26 In holding that the full-time faculty members of Yeshiva University are not covered employees under the National Labor Relations Act, but instead fall within the exclusion for supervisors and managerial employees, the Court disagrees with the determination of the National Labor Relations Board. Because I believe that the Board's decision was neither irrational nor inconsistent with the Act, I respectfully dissent. 27 * Ten years ago the Board first asserted jurisdiction over private nonprofit institutions of higher education. Cornell University, 183 N.L.R.B. 329 (1970). Since then, the Board has often struggled with the Procrustean task of attempting to implement in the altogether different environment of the academic community the broad directives of a statutory scheme designed for the bureaucratic industrial workplace. See, e. g., Adelphi University, 195 N.L.R.B. 639, 648 (1972). Resolution of the particular issue presented in this case—whether full-time faculty members are covered "employees" under the Act—is but one of several challenges confronting the Board in this "unchartered area." C. W. Post Center, 189 N.L.R.B. 904, 905 (1971). 28 Because at the time of the Act's passage Congress did not contemplate its application to private universities, it is not surprising that the terms of the Act itself provide no answer to the question before us. Indeed, the statute evidences significant tension as to congressional intent in this respect by its explicit inclusion, on the one hand, of "professional employees" under § 2(12), 29 U.S.C. § 152(12), and its exclusion, on the other, of "supervisors" under § 2(11), 29 U.S.C. § 152(11). Similarly, when transplanted to the academic arena, the Act's extension of coverage to professionals under § 2(12) cannot easily be squared with the Board-created exclusion of "managerial employees" in the industrial context. See generally NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). 29 Primary authority to resolve these conflicts and to adapt the Act to the changing patterns of industrial relations was entrusted to the Board, not to the judiciary. NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 969, 43 L.Ed.2d 171 (1975). The Court has often admonished that "[t]he ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." NLRB v. Truck Drivers, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d676 (1957). Accord, Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978); NLRB v. Erie Resistor Corp., 373 U.S. 221, 235-236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963). Through its cumulative experience in dealing with labor-management relations in a variety of industrial and nonindustrial settings, it is the Board that has developed the expertise to determine whether coverage of a particular category of employees would further the objectives of the Act.1 And through its continuous oversight of industrial conditions, it is the Board that is best able to formulate and adjust national labor policy to conform to the realities of industrial life. Accordingly, the judicial role is limited; a court may not substitute its own judgment for that of the Board. The Board's decision may be reviewed for its rationality and its consistency with the Act, but once these criteria are satisfied, the order must be enforced. See Beth Israel Hospital v. NLRB, supra, 437 U.S., at 501, 98 S.Ct., at 2473. II 30 In any event, I believe the Board reached the correct result in determining that Yeshiva's full-time faculty is covered under the NLRA. The Court does not dispute that the faculty members are "professional employees" for the purposes of collective bargaining under § 2(12), but nevertheless finds them excluded from coverage under the implied exclusion for managerial employees."2 The Court explains that "[t]he controlling consideration in this case is that the faculty of Yeshiva University exercise authority which in any other context unquestionably would be managerial." Ante, at 686. But the academic community is simply not "any other context." The Court purports to recognize that there are fundamental differences between the authority structures of the typical industrial and academic institutions which preclude the blind transplanting of principles developed in one arena onto the other; yet it nevertheless ignores those very differences in concluding that Yeshiva's faculty is excluded from the Act's coverage. 31 As reflected in the legislative history of the Taft-Hartley Amendments of 1947, the concern behind the exclusion of supervisors under § 2(11) of the Act is twofold. On the one hand, Congress sought to protect the rank-and-file employees from being unduly influenced in their selection of leaders by the presence of management representatives in their union. "If supervisors were members of and active in the union which represented the employees they supervised it could be possible for the supervisors to obtain and retain positions of power in the union by reason of their authority over their fellow union members while working on the job." NLRB v. Metropolitan Life Ins. Co., 405 F.2d 1169, 1178 (CA2 1968). In addition, Congress wanted to ensure that employers would not be deprived of the undivided loyalty of their supervisory foremen. Congress was concerned that if supervisors were allowed to affiliate with labor organizations that represented the rank and file, they might become accountable to the workers, thus interfering with the supervisors' ability to discipline and control the employees in the interest of the employer.3 32 Identical considerations underlie the exclusion of managerial employees. See ante, at 682. Although a variety of verbal formulations have received judicial approval over the years, see Retail Clerks International Assn. v. NLRB, 125 U.S.App.D.C. 63, 65-66, 366 F.2d 642, 644-645 (1966), this Court has recently sanctioned a definition of "managerial employee" that comprises those who " 'formulate and effectuate management policies by expressing and making operative the decisions of their employer.' " See NLRB v. Bell Aerospace Co., 416 U.S., at 288, 94 S.Ct. at 1768. The touchstone of managerial status is thus an alliance with management, and the pivotal inquiry is whether the employee in performing his duties represents his own interests or those of his employer.4 If his actions are undertaken for the purpose of implementing the employer's policies, then he is accountable to management and may be subject to conflicting loyalties. But if the employee is acting only on his own behalf and in his own interest, he is covered under the Act and is entitled to the benefits of collective bargaining. 33 After examining the voluminous record in this case,5 the Board determined that the faculty at Yeshiva exercised its decisionmaking authority in its own interest rather than "in the interest of the employer." 221 N.L.R.B. 1053, 1054 (1975). The Court, in contrast, can perceive "no justification for this distinction" and concludes that the faculty's interests "cannot be separated from those of the institution." Ante, at 688.6 But the Court's vision is clouded by its failure fully to discern and comprehend the nature of the faculty's role in university governance. 34 Unlike the purely hierarchical decisionmaking structure that prevails in the typical industrial organization, the bureaucratic foundation of most "mature" universities is characterized by dual authority systems. The primary decisional network is hierarchical in nature: Authority is lodged in the administration, and a formal chain of command runs from a lay governing board down through university officers to individual faculty members and students. At the same time, there exists a parallel professional network, in which formal mechanisms have been created to bring the expertise of the faculty into the decisionmaking process. See J. Baldridge, Power and Conflict in the University 114 (1971); Finkin, The NLRB in Higher Education, 5 U.Toledo L.Rev. 608, 614-618 (1974). 35 What the Board realized—and what the Court fails to apprehend is that whatever influence the faculty wields in university decisionmaking is attributable solely to its collective expertise as professional educators, and not to any managerial or supervisory prerogatives. Although the administration may look to the faculty for advice on matters of professional and academic concern, the faculty offers its recommendations in order to serve its own independent interest in creating the most effective environment for learning, teaching, and scholarship.7 And while the administration may attempt to defer to the faculty's competence whenever possible, it must and does apply its own distinct perspective to those recommendations, a perspective that is based on fiscal and other managerial policies which the faculty has no part in developing. The University always retains the ultimate decisionmaking authority, see ante, at 675-676, and the administration gives what weight and import to the faculty's collective judgment as it chooses and deems consistent with its own perception of the institution's needs and objectives.8 36 The premise of a finding of managerial status is a determination that the excluded employee is acting on behalf of management and is answerable to a higher authority in the exercise of his responsibilities. The Board has consistently implemented this requirement—both for professional and non-professional employees—by conferring managerial status only upon those employees "whose interests are closely aligned with management as true representatives of management." (Emphasis added.) E. g., Sutter Community Hospitals of Sacramento, 227 N.L.R.B. 181, 193 (1976); Bell Aero- space, 219 N.L.R.B. 384, 385 (1975); General Dynamics Corp., 213 N.L.R.B. 851, 857 (1974).9 Only if the employee is expected to conform to management policies and is judged by his effectiveness in executing those policies does the danger of divided loyalties exist. 37 Yeshiva's faculty, however, is not accountable to the administration in its governance function, nor is any individual faculty member subject to personal sanction or control based on the administration's assessment of the worth of his recommendations. When the faculty, through the schools' advisory committees, participates in university decisionmaking on subjects of academic policy, it does not serve as the "representative of management."10 Unlike industrial supervisors and managers, university professors are not hired to "make operative" the policies and decisions of their employer. Nor are they retained on the condition that their interests will correspond to those of the university administration. Indeed, the notion that a faculty member's professional competence could depend on his undivided loyalty to management is antithetical to the whole concept of academic freedom. Faculty members are judged by their employer on the quality of their teaching and scholarship, not on the compatibility of their advice with administration policy. Board Member Kennedy aptly concluded in his concurring opinion in Northeastern University, 218 N.L.R.B. 247, 257 (1975) (footnote omitted): 38 "[T]he influence which the faculty exercises in many areas of academic governance is insufficient to make them 'managerial' employees. Such influence is not exercised 'for management' or 'in the interest of the employer,' but rather is exercised in their own professional interest. The best evidence of this fact is that faculty members are generally not held accountable by or to the administration for their faculty governance functions. Faculty criticism of administration policies, for example, is viewed not as a breach of loyalty, but as an exercise in academic freedom. So, too, intervention by the university administration in faculty deliberations would most likely be considered an infringement upon academic freedoms. Conversely, university administrations rarely consider themselves bound by faculty recommendations." 39 It is no answer to say, as does the Court, that Yeshiva's faculty and administration are one and the same because their interests tend to coincide. In the first place, the National Labor Relations Act does not condition its coverage on an antagonism of interests between the employer and the employee.11 The mere coincidence of interests on many issues has never been thought to abrogate the right to collective bargaining on those topics as to which that coincidence is absent. Ultimately, the performance of an employee's duties will always further the interests of the employer, for in no institution do the interests of labor and management totally diverge. Both desire to maintain stable and profitable operations, and both are committed to creating the best possible product within existing financial constraints. Differences of opinion and emphasis may develop, however, on exactly how to devote the institution's resources to achieve those goals. When these disagreements surface, the national labor laws contemplate their resolution through the peaceful process of collective bargaining. And in this regard, Yeshiva University stands on the same footing as any other employer. 40 Moreover, the congruence of interests in this case ought not to be exaggerated. The university administration has certain economic and fiduciary responsibilities that are not shared by the faculty, whose primary concerns are academic and relate solely to its own professional reputation. The record evinces numerous instances in which the faculty's recommendations have been rejected by the administration on account of fiscal constraints or other managerial policies. Disputes have arisen between Yeshiva's faculty and administration on such fundamental issues as the hiring, tenure, promotion, retirement, and dismissal of faculty members, academic standards and credits, departmental budgets, and even the faculty's choice of its own departmental representative.12 The very fact that Yeshiva's faculty has voted for the Union to serve as its representative in future negotiations with the administration indicates that the faculty does not perceive its interests to be aligned with those of management. Indeed, on the precise topics which are specified as mandatory subjects of collective bargaining—wages, hours, and other terms and conditions of employment13—the interests of teacher and administrator are often diametrically opposed. 41 Finally, the Court's perception of the Yeshiva faculty's status is distorted by the rose-colored lens through which it views the governance structure of the modern-day university. The Court's conclusion that the faculty's professional interests are indistinguishable from those of the administration is bottomed on an idealized model of collegial decisionmaking that is a vestige of the great medieval university. But the university of today bears little resemblance to the "community of scholars" of yesteryear.14 Education has become "big business," and the task of operating the university enterprise has been transferred from the faculty to an autonomous administration, which faces the same pressures to cut costs and increase efficiencies that confront any large industrial organization.15 The past decade of budgetary cutbacks, declining enrollments, reductions in faculty appointments, curtailment of academic programs, and increasing calls for accountability to alumni and other special interest groups has only added to the erosion of the faculty's role in the institution's decisonmaking process.16 42 These economic exigencies have also exacerbated the tensions in university labor relations, as the faculty and administration more and more frequently find themselves advocating conflicting positions not only on issues of compensation, job security, and working conditions, but even on subjects formerly thought to be the faculty's prerogative. In response to this friction, and in an attempt to avoid the strikes and work stoppages that have disrupted several major universities in recent years, many faculties have entered into collective-bargaining relationships with their administrations and governing boards.17 An even greater number of schools—Yeshiva among them—have endeavored to negotiate and compromise their differences informally, by establishing avenues for faculty input into university decisions on matters of professional concern. 43 Today's decision, however, threatens to eliminate much of the administration's incentive to resolve its disputes with the faculty through open discussion and mutual agreement. By its overbroad and unwarranted interpretation of the managerial exclusion, the Court denies the faculty the protections of the NLRA and, in so doing, removes whatever deterrent value the Act's availability may offer against unreasonable administrative conduct.18 Rather than promoting the Act's objective of funneling dissension between employers and employees into collective bargaining, the Court's decision undermines that goal and contributes to the possibility that "recurring disputes [will] fester outside the negotiation process until strikes or other forms of economic warfare occur." Ford Motor Co. v. NLRB, 441 U.S. 488, 499, 99 S.Ct. 1842, 1850, 60 L.Ed.2d 420 (1979). III 44 In sum, the Board analyzed both the essential purposes underlying the supervisory and managerial exclusions and the nature of the governance structure at Yeshiva University. Relying on three factors that attempt to encapsulate the fine distinction between those professional employees who are entitled to the NLRA's protections and those whose managerial responsibilities require their exclusion,19 the Board concluded that Yeshiva's full-time faculty qualify as the former rather than the latter. I believe the Board made the correct determination. But even were I to have reservations about the specific result reached by the Board on the facts of this case, I would certainly have to conclude that the Board applied a proper mode of analysis to arrive at a decision well within the zone of reasonableness. Accordingly, in light of the deference due the Board's determination in this complex area, I would reverse the judgment of the Court of Appeals. 1 49 Stat. 449, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.; see 29 U.S.C. §§ 152(3), 152(11), 164(a); NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). 2 The schools involved are Yeshiva College, Stern College for Women, Teacher's Institute for Women, Erna Michael College, Yeshiva Program, James Striar School of General Jewish Studies, Belfer Graduate School of Sciences, Ferkauf Graduate School of Humanities and Social Sciences, Wurzweiler School of Social Work, and Bernard Revel Graduate School. The Union did not seek to represent the faculty of the medical school, the graduate school of medical sciences, the Yeshiva High School, or any of the theological programs affiliated with the University. A law school has been opened since the time of the hearings, but it does not figure in this case. 3 At Yeshiva College, budget requests prepared by the senior professor in each subject area receive the "perfunctory" approval of the Dean "99 percent" of the time and have never been rejected by the central administration. App. 298-299. A council of elected department chairmen at Ferkauf approves the school's budget allocations when discretionary funds are available. Id., at 626-627. All of these professors were included in the bargaining unit approved by the Board. 4 For example, the Deans at Yeshiva and Erna Michael Colleges regard faculty actions as binding. Id., at 248-249, 312-313. Administrators testified that no academic initiative of either faculty had been vetoed since at least 1968. Id., at 250, 313. When the Stern College faculty disagreed with the Dean's decision to delete the education major, the major was reinstituted. Id., at 191. The Director of the Teacher's Institute for Women testified that "the faculty is the school," id., at 379, while the Director of the James Striar School described his position as the "executive arm of the faculty," which had overruled him on occasion, id., at 360-361. All decisions regarding academic matters at the Yeshiva Program and Bernard Revel are made by faculty consensus. Id., at 574, 583-586. The "internal operation of [Wurzweiler] has been heavily governed by faculty decisions," according to its Dean. Id., at 502. 5 One Dean estimated that 98% of faculty hiring recommendations were ultimately given effect. Id., at 624. Others could not recall an instance when a faculty recommendation had been overruled. Id., at 193-194. At Stern College, the Dean in six years has never overturned a promotion decision. Ibid. The President has accepted all decisions of the Yeshiva College faculty as to promotions and sabbaticals, including decisions opposed by the Dean. Id., at 268-270. At Erna Michael, the Dean has never hired a full-time faculty member without the consent of the affected senior professor, id., at 333-335, and the Director of Teacher's Institute for Women stated baldly that no teacher had ever been hired if "there was the slightest objection, even on one faculty member's part." Id., at 388. The faculty at both these schools have overridden recommendations made by the deans. No promotion or grant of tenure has ever been made at Ferkauf over faculty opposition. Id., at 620, 633. The Dean of Belfer testified that he had no right to override faculty decisions on tenure and nonrenewal. Id., at 419. 6 The Director of Teacher's Institute for Women once recommended that the school move to Brooklyn to attract students. The faculty rejected the proposal and the school remained in Manhattan. Id., at 379-380. 7 "Full-time faculty" were defined as those "appointed to the University in the titles of professor, associate professor, assistant professor, instructor, or any adjunct or visiting thereof, department chairmen, division chairmen, senior faculty and assistant deans, but excluding . . . part-time faculty; lecturers; principal investigators; deans, acting deans and directors; [and others not relevant to this action]." 221 N.L.R.B., at 1057. The term "faculty" in this opinion refers to the members of this unit as defined by the Board. 8 Identical language had been employed in at least two other Board decisions. See infra, at 684-685. In this case, it was not supported by a single citation to the record. Mr. Justice BRENNAN's dissent relies on this language, post, at 696, and adds that a faculty's "primary concerns are academic and relate solely to its own professional reputation," post, at 701. The view that faculty governance authority "is exercised in the faculty's own interest" rather than that of the University assumes a lack of responsibility that certainly is not reflected in this record. 9 See also S.Rep.No.573, 74th Cong., 1st Sess., 7 (1935) (dispute between employer and college professor would not be covered); H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 36 (1947) U.S.Code Cong.Serv.1947, p. 1135 (listing professional employees covered by new statutory provision without mentioning teachers); S.Rep.No.105, 80th Cong., 1st Sess., 11, 19 (1947) (same). 10 See the inaugural address of Williams College President Paul Ansel Chadbourne, quoted in Kahn, The NLRB and Higher Education: The Failure of Policymaking Through Adjudication, 21 UCLA L.Rev. 63, 70, n. 16 (1973) (" 'Professors are sometimes spoken of as working for the college. They are the college' ") (emphasis in original); Davis, Unions and Higher Education: Another View, 49 Ed. Record 139, 143 (1968) ("The president . . . is not the faculty's master. He is as much the faculty's administrator as he is the board [of trustees']"); n. 4, supra. 11 The Board has suggested that Congress tacitly approved the formation of faculty units in 1974, when the Act was amended to eliminate the exemption accorded to nonprofit hospitals. Although Congress appears to have agreed that nonprofit institutions "affect commerce" under modern economic conditions, H.R.Rep.No.93-1051, p. 4 (1974); 120 Cong.Rec. 12938 (1974) (remarks of Sen. Williams), there is nothing to suggest that Congress considered the status of university faculties. 12 The Act provides broadly that "employees" have organizational and other rights. 29 U.S.C. § 157. Section 2(3) defines "employee" in general terms, 29 U.S.C. § 152(3); § 2(12) defines "professional employee" in some detail, 29 U.S.C. § 152(12); and § 9(b)(1) prohibits the Board from creating a bargaining unit that includes both professional and nonprofessional employees unless a majority of the professionals vote for inclusion, 29 U.S.C. § 159(b)(1). 13 An employee may be excluded if he has authority over any one of 12 enumerated personnel actions, including hiring and firing. 29 U.S.C. §§ 152(3), 152(11), 164(a). The Board has held repeatedly that professionals may be excluded as supervisors. E. g., University of Vermont, 223 N.L.R.B. 423, 426 (1976); Presbyterian Medical Center, 218 N.L.R.B. 1266, 1267-1269 (1975). 14 NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). The Board never has doubted that the managerial exclusion may be applied to professionals in a proper case. E. g., Sutter Community Hospitals of Sacramento, 227 N.L.R.B. 181, 193 (1976); see General Dynamics Corp., 213 N.L.R.B. 851, 857-858 (1974); Westinghouse Electric Corp., 113 N.L.R.B. 337, 339 (1955). 15 E. g., Sutter Community Hospitals of Sacramento, supra, at 193; Bell Aerospace, 219 N.L.R.B. 384, 385-386 (1975) (on remand); General Dynamics Corp., supra, at 857; see NLRB v. Bell Aerospace Co., supra, at 274, 286-289, 94 S.Ct., at 1761-1762, 1767-1769. 16 The Board has found decisions of far less significance to the employer to be managerial when the affected employees were aligned with management. Swift & Co., 115 N.L.R.B. 752, 753 (1956) (procurement drivers who made purchases for employers); Firestone Tire & Rubber Co., 112 N.L.R.B. 571, 573 (1955) (production schedulers); Peter Kiewit Sons' Co., 106 N.L.R.B. 194, 196 (1953) (lecturers who indoctrinated new employees); Western Electric Co., 100 N.L.R.B. 420, 423 (1952) (personnel investigators who made hiring recommendations); American Locomotive Co., 92 N.L.R.B. 115, 116-117 (1950) (buyers who made substantial purchases on employer's behalf). 17 The Union does argue that the faculty's authority is merely advisory. But the fact that the administration holds a rarely exercised veto power does not diminish the faculty's effective power in policymaking and implementation. See nn. 4, 5, supra. The statutory definition of "supervisor" expressly contemplates that those employees who "effectively . . . recommend" the enumerated actions are to be excluded as supervisory. 29 U.S.C. § 152(11). Consistent with the concern for divided loyalty, the relevant consideration is effective recommendation or control rather than final authority. That rationale applies with equal force to the managerial exclusion. 18 Two cases simply announced that faculty authority is neither managerial nor supervisory because it is exercised collectively. C. W. Post Center, 189 N.L.R.B. 904, 905 (1971); Fordham University, 193 N.L.R.B. 134, 135 (1971). The Board later acknowledged that "a genuine system of collegiality would tend to confound us," but held that the modern university departs from that system because "ultimate authority" is vested in a board of trustees which neither attempts to convert the faculty into managerial entities nor advises them to advocate management interests. Adelphi University, 195 N.L.R.B. 639, 648 (1972). See Fairleigh Dickinson University, 227 N.L.R.B. 239, 241 (1976). 19 Citing these three factors, the Board concludes in each case that faculty are professional employees. It has never explained the reasoning connecting the premise with the conclusion, although an argument similar to that made by its lawyers in this case appears in one concurring opinion. Northeastern University, 218 N.L.R.B., at 257 (opinion of Member Kennedy). 20 Although the Board has preserved the points in footnotes to its brief, it no longer contends that "collective authority" and "lack of ultimate authority" are legal rationales. They are now said to be facts which, respectively, "fortif[y]" the Board's view that faculty members act in their own interest, and contradict the premise that the university is a "self-governing communit[y] of scholars." Reply Brief for Petitioner in No. 78-857, p. 11, n. 8. Cf. n. 8, supra. 21 The "collective authority" branch has never been applied to supervisors who work through committees. E. g., Florida Southern College, 196 N.L.R.B. 888, 889 (1972). Nor was it thought to bar managerial status for employees who owned enough stock to give them, as a group, a substantial voice in the employer's affairs. See Sida of Hawaii, Inc., 191 N.L.R.B. 194, 195 (1971); Red and White Airway Cab Co., 123 N.L.R.B. 83, 85 (1959); Brookings Plywood Corp., 98 N.L.R.B. 794, 798-799 (1952). Ultimate authority, the third branch, has never been thought to be a prerequisite to supervisory or managerial status. Indeed, it could not be since every corporation vests that power in its board of directors. 22 We do not, of course, substitute counsel's post hoc rationale for the reasoning supplied by the Board itself. SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). Because the first and third branches of the Board's analysis are insupportable, the Board's only colorable theory is the "interest of the employer" branch. The argument presented to us is an expanded and considerably refined version of that notion. 23 The record shows that faculty members at Yeshiva also play a predominant role in faculty hiring, tenure, sabbaticals, termination and promotion. See supra, at 677, and n. 5. These decisions clearly have both managerial and supervisory characteristics. Since we do not reach the question of supervisory status, we need not rely primarily on these features of faculty authority. 24 The Board has cited no case directly applying an "independent professional judgment" standard. On the related question of accountability for implementation of management policies, it cites only NLRB v. Fullerton Publishing Co., 283 F.2d 545, 550 (CA9 1960), which held that a news editor "responsibly directed" his department so as to fall within the definition of a supervisor, 29 U.S.C. § 152(11). The court looked in part to accountability in rejecting the claim that the editor merely relayed assignments and thus was not "responsible" for directing employees as required by the statute. The case did not involve the managerial exclusion and has no application to the issues before us. 25 See cases cited in nn. 13 and 14, supra. A strict "conformity to management policy" test ignores the dual nature of the managerial role, since managers by definition not only conform to established policies but also exercise their own judgment within the range of those policies. See Bell Aerospace, 219 N.L.R.B., at 385 (quoting Eastern Camera & Photo Corp., 140 N.L.R.B. 569, 571 (1963)). 26 University of Chicago Library, 205 N.L.R.B. 220, 221-222, 229 (1973), enf'd, 506 F.2d 1402 (CA7 1974) (reversing an Administrative Law Judge's decision which had been premised on the "professional judgment" rationale); Sutter Community Hospitals of Sacramento, 227 N.L.R.B., at 193 (excluding as managerial a clinical specialist who used interdisciplinary professional skills to run a hospital department). 27 At Yeshiva, administrative concerns with scarce resources and University-wide balance have led to occasional vetoes of faculty action. But such infrequent administrative reversals in no way detract from the institution's primary concern with the academic responsibilities entrusted to the faculty. The suggestion that faculty interests depart from those of the institution with respect to salary and benefits is even less meritorious. The same is true of every supervisory or managerial employee. Indeed, there is arguably a greater community of interest on this point in the university than in industry, because the nature and quality of a university depend so heavily on the faculty attracted to the institution. B. Richman & R. Farmer, Leadership, Goals, and Power in Higher Education 258 (1974); see D. Bornheimer, G. Burns, & G. Dumke, The Faculty in Higher Education 174-175 (1973). 28 See American Association for Higher Education, Faculty Participation in Academic Governance 22-24 (1967); Bornheimer, Burns, & Dumke, supra, at 149-150; Kadish, The Theory of the Profession and Its Predicament, 58 A.A.U.P.Bull. 120, 121 (1972). The extent to which Yeshiva faculty recommendations are implemented is no "mere coincidence," as Mr. Justice BRENNAN's dissent suggests. Post, at 701. Rather this is an inevitable characteristic of the governance structure adopted by universities like Yeshiva. 29 The dissent concludes, citing several secondary authorities, that the modern university has undergone changes that have shifted "the task of operating the university enterprise" from faculty to administration. Post, at 703. The shift, if it exists, is neither universal nor complete. See K. Mortimer & T. McConnell, Sharing Authority Effectively 27-28, 158-162, 164-165 (1978). In any event, our decision must be based on the record before us. Nor can we decide this case by weighing the probable benefits and burdens of faculty collective bargaining. See post, at 702-705. That, after all, is a matter for Congress, not this Court. 30 For this reason, architects and engineers functioning as project captains for work performed by teams of professionals are deemed employees despite substantial planning responsibility and authority to direct and evaluate team members. See General Dynamics Corp., 213 N.L.R.B., at 857-858; Wurster, Bernardi & Emmons, Inc., 192 N.L.R.B. 1049, 1051 (1971); Skidmore, Owings & Merrill, 192 N.L.R.B. 920, 921 (1971). See also Doctors' Hospital of Modesto, Inc., 183 N.L.R.B. 950, 951-952 (1970), enf'd, 489 F.2d 772 (CA9 1973) (nurses); National Broadcasting Co., 160 N.L.R.B. 1440, 1441 (1966) (broadcast newswriters). In the health-care context, the Board asks in each case whether the decisions alleged to be managerial or supervisory are "incidental to" or "in addition to" the treatment of patients, a test Congress expressly approved in 1974. S.Rep. No. 93-766, p. 6 (1974), U.S.Code Cong. & Admin.News, 1974, p. 3946. 31 We recognize that this is a starting point only, and that other factors not present here may enter into the analysis in other contexts. It is plain, for example, that professors may not be excluded merely because they determine the content of their own courses, evaluate their own students, and supervise their own research. There thus may be institutions of higher learning unlike Yeshiva where the faculty are entirely or predominantly nonmanagerial. There also may be faculty members at Yeshiva and like universities who properly could be included in a bargaining unit. It may be that a rational line could be drawn between tenured and untenured faculty members, depending upon how a faculty is structured and operates. But we express no opinion on these questions, for it is clear that the unit approved by the Board was far too broad. 1 "It is not necessary in this case to make a completely definitive limitation around the term 'employee.' That task has been assigned primarily to the agency created by Congress to administer the Act. Determination of 'where all the conditions of the relation require protection' involves inquiries for the Board charged with this duty. Everyday experience in the administration of the statute gives it familiarity with the circumstances and backgrounds of employment relationships in various industries, with the abilities and needs of the workers for self organization and collective action, and with the adaptability of collective bargaining for the peaceful settlement of their disputes with their employers. The experience thus acquired must be brought frequently to bear on the question who is an employee under the Act. Resolving that question . . . 'belongs to the usual administrative routine' of the Board." NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944). Accord, NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 290, 97 L.Ed. 377 (1953). 2 Because the Court concludes that Yeshiva's full-time faculty are managerial employees, it finds it unnecessary to reach the University's contention that the faculty are also excluded as "supervisors" under § 2 (11). Ante, at 682. My discussion therefore focuses on the question of the faculty's managerial status, but I would resolve the issue of their supervisory status in a similar fashion. 3 See H.R.Rep. No. 245, 80th Cong., 1st Sess., 14 (1947): "The evidence before the committee shows clearly that unionizing supervisors under the Labor Act is inconsistent with the purpose of the act . . . . It is inconsistent with the policy of Congress to assure to workers freedom from domination or control by their supervisors in their organizing and bargaining activities. It is inconsistent with our policy to protect the rights of employers; they, as well as workers, are entitled to loyal representatives in the plants, but when the foremen unionize, even in a union that claims to be 'independent' of the union of the rank and file, they are subject to influence and control by the rank and file union, and, instead of their bossing the rank and file, the rank and file bosses them." See also S.Rep. No. 105, 80th Cong., 1st Sess., 3-5 (1947). 4 Section 2(11) of the Act requires, as a condition of supervisory status, that authority be exercised "in the interest of the employer." 29 U.S.C. § 152(11). See also NLRB v. Master Stevedores Assn., 418 F.2d 140 (CA5 1969); International Union of United Brewery Workers v. NLRB, 111 U.S.App.D.C. 383, 298 F.2d 297 (1961). 5 The Board held hearings over a 5-month period and compiled a record containing more than 4,600 pages of testimony and 200 exhibits. 6 The Court thus determines that all of Yeshiva's full-time faculty members are managerial employees, even though their role in university decisionmaking is limited to the professional recommendations of the faculty acting as a collective body, and even though they supervise and manage no personnel other than themselves. The anomaly of such a result demonstrates the error in extending the managerial exclusion to a class of essentially rank-and-file employees who do not represent the interests of management and who are not subject to the danger of conflicting loyalties which motivated the adoption of that exemption. 7 As the Board has recognized, due to the unique nature of their work, professional employees will often make recommendations on matters that are of great importance to management. But their desire to exert influence in these areas stems from the need to maintain their own professional standards, and this factor—common to all professionals—should not, by itself, preclude their inclusion in a bargaining unit. See Westinghouse Electric Corp., 113 N.L.R.B. 337, 339-340 (1955). In fact, Congress clearly recognized both that professional employees consistently exercise independent judgment and discretion in the performance of their duties, see 29 U.S.C. § 152(12), and that they have a significant interest in maintaining certain professional standards, see S.Rep. No. 105, 80th Cong., 1st Sess., 11 (1947). Yet Congress specifically included professionals within the Act's coverage. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 298, 94 S.Ct. 1757, 1773, 40 L.Ed.2d 134 (1974) (WHITE, J., dissenting in part). 8 One must be careful not to overvalue the significance of the faculty's influence on academic affairs. As one commentator has noted, "it is not extraordinary for employees to seek to exert influence over matters embedded in an employment relationship for which they share a concern, or that management would be responsive to their strongly held desires." Finkin, The NLRB in Higher Education, 5 U.Toledo L.Rev. 608, 616 (1974). Who, after all, is better suited than the faculty to decide what courses should be offered, how they should be taught, and by what standards their students should be graded? Employers will often attempt to defer to their employees' suggestions, particularly where—as here—those recommendations relate to matters within the unique competence of the employees. Moreover, insofar as faculty members are given some say in more traditional managerial decisions such as the hiring and promotion of other personnel, such discretion does not constitute an adequate basis for the conferral of managerial or supervisory status. Indeed, in the typical industrial context, it is not uncommon for the employees' union to be given the exclusive right to recommend personnel to the employer, and these hiring-hall agreements have been upheld even where the union requires a worker to pass a union-administered skills test as a condition of referral. See, e. g., Local 42 (Catalytic Constr. Co.), 164 N.L.R.B. 916 (1967); see generally Teamsters v. NLRB, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961). 9 The Board has also explained that the ability of the typical professional employee to influence company policy does not bestow managerial authority: "Work which is based on professional competence necessarily involves a consistent exercise of discretion and judgment, else professionalism would not be involved. Nevertheless, professional employees plainly are not the same as management employees either by definition or in authority, and managerial authority is not vested in professional employees merely by virtue of their professional status, or because work performed in that status may have a bearing on company direction." General Dynamics Corp., 213 N.L.R.B., at 857-858. 10 Where faculty members actually do serve as management's representatives, the Board has not hesitated to exclude them from the Act's coverage as managerial or supervisory personnel. Compare University of Vermont, 223 N.L.R.B. 423 (1976) (excluding department chairmen as supervisors), and University of Miami, 213 N.L.R.B. 634 (1974) (excluding deans as supervisors), with Northeastern University, 218 N.L.R.B. 247 (1975) (department chairmen included within bargaining unit because they act primarily as instruments of the faculty), and Fordham University, 193 N.L.R.B. 134 (1971) (including department chairmen because they are considered to be representatives of the faculty rather than of the administration). In fact, the bargaining unit approved by the Board in the present case excluded deans, acting deans, directors, and principal investigators of research and training grants, all of whom were deemed to exercise supervisory or managerial authority. See ante, at 678, n. 7. 11 Nor does the frequency with which an employer acquiesces in the recommendations of its employees convert them into managers or supervisors. See Stop & Shop Cos., Inc. v. NLRB, 548 F.2d 17, 19 (CA1 1977). Rather, the pertinent inquiries are who retains the ultimate decisionmaking authority and in whose interest the suggestions are offered. A different test could permit an employer to deny its employees the benefits of collective bargaining on important issues of wages, hours, and other conditions of employment merely by consulting with them on a host of less significant matters and accepting their advice when it is consistent with management's own objectives. 12 See, e. g., App. 740-742 (faculty hiring); id., at 232-233, 632, 667 (tenure); id., at 194, 620, 742-743 (promotion); id., at 713, 1463-1464 (retirement); id., at 241 (dismissal); id., at 362 (academic credits); id., at 723-724, 1469-1470 (cutback in departmental budget leading to loss of accreditation); id., at 410, 726-727 (election of department chairman and representative). 13 See 29 U.S.C. § 158(d). 14 See generally J. Brubacher & W. Rudy, Higher Education in Transition: A History of American Colleges and Universities, 1636-1976 (3d ed. 1976). In one of its earliest decisions in this area, the Board recognized that the governance structure of the typical modern university does not fit the mold of true collegiality in which authority rests with a peer group of scholars. Adelphi University, 195 N.L.R.B. 639, 648 (1972). Accord, New York University, 205 N.L.R.B. 4, 5 (1973). Even the concept of "shared authority," in which university decisionmaking is seen as the joint responsibility of both faculty and administration, with each exerting a dominant influence in its respective sphere of expertise, has been found to be "an ideal rather than a widely adopted practice." K. Mortimer & T. McConnell, Sharing Authority Effectively 4 (1978). The authors conclude: "Higher education is in the throes of a shift from informal and consensual judgments to authority based on formal criteria. . . . There have been changes in societal and legislative expectations about higher education, an increase in external regulation of colleges and universities, an increase in emphasis on managerial skills and the technocratic features of modern management, and a greater codification of internal decisionmaking procedures. These changes raise the question whether existing statements of shared authority provide adequate guidelines for internal governance." Id., at 269. 15 In 1976-1977, the total expenditures of institutions of higher education in the United States exceeded $42 billion. National Center for Education Statistics, Digest of Education Statistics 137 (Table 133) (1979). In the same year, Yeshiva University, a private institution, received over $34 million in revenues from the Federal Government. Id., at 132 (Table 127). 16 University faculty members have been particularly hard hit by the current financial squeeze. Because of inflation, the purchasing power of the faculty's salary has declined an average of 2.9% every year since 1972. Real salaries are thus 13.6% below the 1972 levels. Hansen, An Era of Continuing Decline: Annual Report on the Economic Status of the Profession, 1978-1979, 65 Academe: Bulletin of the American Association of University Professors 319, 323-324 (1979). Moreover, the faculty at Yeshiva has fared even worse than most. Whereas the average salary of a full professor at a comparable institution is $31,100, a full professor at Yeshiva averages only $27,100. Id., at 334, 348. In fact, a severe financial crisis at the University in 1971-1972 forced the president to order a freeze on all faculty promotions and pay increases. App. 1459. 17 As of January 1979, 80 private and 302 public institutions of higher education had engaged in collective bargaining with their faculties, and over 130,000 academic personnel had been unionized. National Center for the Study of Collective Bargaining in Higher Education, Directory of Faculty Contracts and Bargaining Agents in Institutions of Higher Education i-ii (1979). Although the NLRA is not applicable to any public employer, see 29 U.S.C. § 152(2), as of 1976, 22 States had enacted legislation granting faculties at public institutions the right to unionize and requiring public employers to bargain with duly constituted bargaining agents. Mortimer & McConnell, supra, n. 14, at 53. See also Livingston & Christensen, State and Federal Regulation of Collective Negotiations in Higher Education, 1971 Wis.L.Rev. 91, 102. The upsurge in the incidence of collective bargaining has generally been attributed to the faculty's desire to use the process as a countervailing force against increased administrative power and to ensure that the ideals of the academic community are actually practiced. As the Carnegie Commission found, "[u]nionization for [faculty] is more a protective than an aggressive act, more an effort to preserve the status quo than to achieve a new position of influence and affluence. . . ." Carnegie Commission on Higher Education, Governance of Higher Education 40 (1973). See also Mortimer & McConnell, supra, n. 14, at 56; Lindeman, The Five Most Cited Reasons for Faculty Unionization, 102 Intellect 85 (1973); Nielsen & Polishook, Collective Bargaining and Beyond, The Chronicle of Higher Education 7 (May 21, 1979). 18 The Carnegie Commission, in concluding that "faculty members should have the right to organize and to bargain collectively, if they so desire," Carnegie Commission on Higher Education, supra, at 43, observed: "We may be involved in a long-term period of greater social conflict in society and greater tension on campus. If so, it may be better to institutionalize this conflict through collective bargaining than to have it manifest itself with less restraint. Collective bargaining does provide agreed-upon rules of behavior, contractual understandings, and mechanisms for dispute settlement and grievance handling that help to manage conflict." Id., at 51. 19 Contrary to the Court's assertion, see ante, at 685, the Board has not abandoned the "collective authority" and "ultimate authority" branches of its analysis. See Reply Brief for Petitioner in No. 78-857, pp. 11-12, n. 8. Although the "interest/alignment analysis" rationale goes to the heart of the basis for the managerial and supervisory exclusions and therefore provides the strongest support for the Board's determination, the other two rationales are significant because they highlight two aspects of the university decisionmaking process relevant to the Board's decision: That the faculty's influence is exercised collectively—and only collectively—indicates that the faculty's recommendations embody the views of the rank and file rather than those of a select group of persons charged with formulating and implementing management policies. Similarly, that the administration retains ultimate authority merely indicates that a true system of collegiality is simply not the mode of governance at Yeshiva University.

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444 U.S. 620 100 S.Ct. 826 63 L.Ed.2d 73 VILLAGE OF SCHAUMBURG, Petitioner,v.CITIZENS FOR A BETTER ENVIRONMENT et al. No. 78-1335. Argued Oct. 30, 1979. Decided Feb. 20, 1980. Rehearing Denied April 14, 1980. See 445 U.S. 972, 100 S.Ct. 1668. Syllabus Petitioner village has an ordinance prohibiting door-to-door or on-street solicitation of contributions by charitable organizations that do not use at least 75 percent of their receipts for "charitable purposes," such purposes being defined to exclude solicitation expenses, salaries, overhead, and other administrative expenses. After petitioner denied respondent Citizens for a Better Environment (CBE) (a nonprofit environmental-protection organization) a solicitation permit because it could not meet the ordinance's 75-percent requirement, CBE sued petitioner in Federal District Court, alleging that such requirement violated the First and Fourteenth Amendments, and seeking declaratory and injunctive relief. The District Court granted summary judgment for CBE. The Court of Appeals affirmed, rejecting petitioner's argument that summary judgment was inappropriate because there was an unresolved factual dispute as to the true character of CBE's organization, and holding that since CBE challenged the facial validity of the ordinance on First Amendment grounds the facts as to CBE's internal affairs and operations were immaterial and therefore not an obstacle to the granting of summary judgment. The court concluded that even if the 75-percent requirement might be valid as applied to other types of charitable solicitation, the requirement was unreasonable on its face because it barred solicitation by advocacy-oriented organizations even where the contributions would be used for reasonable salaries of those who gathered and disseminated information relevant to the organization's purpose. Held : The ordinance in question is unconstitutionally overbroad in violation of the First and Fourteenth Amendments. Pp. 628-639. (a) Charitable appeals for funds, on the street or door to door, involve a variety of speech interests—communication of information dissemination and propagation of views and ideas, and advocacy of causes—that are within the First Amendment's protection. While soliciting financial support is subject to reasonable regulation, such regulation must give due regard to the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and to the reality that without solicitation the flow of such information and advocacy would likely cease. Moreover, since charitable solicitation does more than inform private economic decisions and is not primarily concerned with providing information about the characteristics and costs of goods and services, it is not dealt with as a variety of purely commercial speech. Pp. 628-632. (b) The Court of Appeals was free to inquire whether the ordinance was overbroad, a question of law that involved no dispute about CBE's characteristics, and thus properly proceeded to rule on the merits of the summary judgment. CBE was entitled to its judgment of facial invalidity if the ordinance purported to prohibit canvassing by a substantial category of charities to which the 75-percent limitation could not be applied consistently with the First and Fourteenth Amendments, even if there was no demonstration that CBE itself was one of these organizations. Pp. 633-635. (c) The 75-percent limitation is a direct and substantial limitation on protected activity that cannot be sustained unless it serves a sufficiently strong, subordinating interest that petitioner is entitled to protect. Here, petitioner's proffered justifications that such limitation is intimately related to substantial governmental interests in preventing fraud and protecting public safety and residential privacy are inadequate, and such interests could be sufficiently served by measures less destructive of First Amendment interests. Pp. 635-639. 590 F.2d 220, affirmed. Jack M. Siegel, Chicago, Ill., for petitioner. Milton I. Shadur, Chicago, Ill., for respondent. Adam Yarmolinsky, Washington, D.C., for the Coalition of National Voluntary Organizations et al., as amici curiae, by special leave of Court. Mr. Justice WHITE delivered the opinion of the Court. 1 The issue in this case is the validity under the First and Fourteenth Amendments of a municipal ordinance prohibiting the solicitation of contributions by charitable organizations that do not use at least 75 percent of their receipts for "charitable purposes," those purposes being defined to exclude solicitation expenses, salaries, overhead, and other administrative expenses. The Court of Appeals held the ordinance unconstitutional. We affirm that judgment. 2 * The Village of Schaumburg (Village) is a suburban community located 25 miles northwest of Chicago, Ill. On March 12, 1974, the Village adopted "An Ordinance Regulating Soliciting by Charitable Organizations," codified as Art. III of Chapter 22 of the Schaumburg Village Code (Code), which regulates the activities of "peddlers and solicitors," Code § 22-1 et seq. (1975).1 Article III2 provides that "[e]very charitable organization, which solicits or intends to solicit contributions from persons in the village by door-to-door solicitation or the use of public streets and public ways, shall prior to such solicitation apply for a permit." § 22-20.3 Solicitation of contributions for charitable organizations without a permit is prohibited and is punishable by a fine of up to $500 for each offense. Schaumburg Ordinance No. 1052, §§ 1, 8 (1974). 3 Section 22-20(g), which is the focus of the constitutional challenge involved in this case, requires that permit applications, among other things, contain "[s]atisfactory proof that at least seventy-five per cent of the proceeds of such solicitations will be used directly for the charitable purpose of the organization."4 In determining whether an organization satisfies the 75-percent requirement, the ordinance provides that 4 "the following items shall not be deemed to be used for the charitable purposes of the organization, to wit: 5 "(1) Salaries or commissions paid to solicitors; 6 "(2) Administrative expenses of the organization, including, but not limited to, salaries, attorneys' fees, rents, telephone, advertising expenses, contributions to other organizations and persons, except as a charitable contribution and related expenses incurred as administrative or overhead items." § 22-20(g). 7 Respondent Citizens for a Better Environment (CBE) is an Illinois not-for-profit corporation organized for the purpose of promoting "the protection of the environment." CBE is registered with the Illinois Attorney General's Charitable Trust Division pursuant to Illinois law,5 and has been afforded tax-exempt status by the United States Internal Revenue Service, and gifts to it are deductible for federal income tax purposes. CBE requested permission to solicit contributions in the Village, but the Village denied CBE a permit because CBE could not demonstrate that 75 percent of its receipts would be used for "charitable purposes" as required by § 22-20(g) of the Code. CBE then sued the Village in the United States District Court for the Northern District of Illinois, charging that the 75-percent requirement of § 22-20(g) violated the First and Fourteenth Amendments. Declaratory and injunctive relief was sought. 8 In its amended complaint, CBE alleged that "[i]t was organized for the purpose, among others, of protecting, maintaining, and enhancing the quality of the Illinois environment." The complaint also alleged: 9 "That incident to its purpose, CBE employs 'canvassers' who are engaged in door-to-door activity in the Chicago metropolitan area, endeavoring to distribute literature on environmental topics and answer questions of an environmental nature when posed; solicit contributions to financially support the organization and its programs; receive grievances and complaints of an environmental nature regarding which CBE may afford assistance in the evaluation and redress of these grievances and complaints." 10 The Village's answer to the complaint averred that the foregoing allegations, even if true, would not be material to the issues of the case, acknowledged that CBE employed "canvassers" to solicit funds, but alleged that "CBE is primarily devoted to raising funds for the benefit and salary of its employees and that its charitable purposes are negligible as compared with the primary objective of raising funds." The Village also alleged "that more than 60% of the funds collected [by CBE] have been spent for benefits of employees and not for any charitable purposes."6 11 Real Cause in Clean-Air Fight?" Suburban Trib, Nov. 10. 1976, p. 1. Based on reports on file with the Illinois Attorney General's office, the article stated that more than two-thirds of the funds collected by CBE in fiscal year 1975 were spent on salaries and employee health benefits. The article noted that in 1971 the Illinois Attorney General had sued CBE for failing to register its solicitors and for making false claims that CBE was working to " 'increase the size of the attorney general's staff and consequently their effectiveness in the fight against pollution.' " The suit was settled by a consent decree with CBE agreeing to register its solicitors and to change some of the claims it was making. The article stated that the chief of the Charitable Trusts and Solicitation Division of the Illinois Attorney General's office was convinced of CBE's commitment to environmental issues, but that his division would continue to monitor carefully the group's solicitation activities. 12 CBE moved for summary judgment and filed affidavits describing its purposes and the activities of its "canvassers" as outlined in the complaint. One of the affidavits also alleged that "the door-to-door canvass is the single most important source of funds" for CBE. A second affidavit offered by CBE stated that in 1975 the organization spent 23.3% of its income on fundraising and 21.5% of its income on administration, and that in 1976 these figures were 23.3% and 16.5%, respectively. The Village opposed the motion but filed no counteraffidavits taking issue with the factual representations in CBE's affidavits. 13 The District Court awarded summary judgment to CBE. The court recognized that although "the government may regulate solicitation in order to protect the community from fraud, . . . [a]ny action impinging upon the freedom of expression and discussion . . . must be minimal, and intimately related to an articulated, substantial government interest." The court concluded that the 75-percent requirement of § 22-20(g) of the Code on its face was "a form of censorship" prohibited by the First and Fourteenth Amendments. Section 22-20(g) was declared void on its face, its enforcement was enjoined, and the Village was ordered to issue a charitable solicitation permit to CBE. 14 The Court of Appeals for the Seventh Circuit affirmed. 590 F.2d 220 (1978). The court rejected the Village's argument that summary judgment was inappropriate because material issues of fact were disputed. Because CBE challenged the facial validity of the village ordinance on First Amendment grounds, the court held that "any issue of fact as to the nature of CBE's particular activities is not material . . . and is therefore not an obstacle to the granting of summary judgment." Id., at 223. Like the District Court, the Court of Appeals recognized that the Village had a legitimate interest in regulating solicitation to protect its residents from fraud and the disruption of privacy, but that such regulation "must be done 'with narrow specificity' " when First Amendment interests are affected. Id., at 223-224. The court concluded that even if the 75-percent requirement might be valid as applied to other types of charitable solicitation, the Village's requirement was unreasonable on its face because it barred solicitation by advocacy-oriented organizations even "where it is made clear that the contributions will be used for reasonable salaries of those who will gather and disseminate information relevant to the organization's purpose." Id., at 226. The court distinguished National Foundation v. Fort Worth, 415 F.2d 41 (CA5 1969), cert. denied, 396 U.S. 1040, 90 S.Ct. 688, 24 L.Ed.2d 684 (1970), which upheld an ordinance authorizing denial of charitable solicitation permits to organizations with excessive solicitation costs, on the ground that although the Fort Worth ordinance deemed unreasonable solicitation costs in excess of 20 percent of gross receipts, it nevertheless permitted organizations that demonstrated the reasonableness of such costs to obtain solicitation permits. 15 We granted certiorari, 441 U.S. 922, 99 S.Ct. 2029, 60 L.Ed.2d 395 (1979), to review the Court of Appeals' determination that the village ordinance violates the First and Fourteenth Amendments. II 16 It is urged that the ordinance should be sustained because it deals only with solicitation and because any charity is free to propagate its views from door to door in the Village without a permit as long as it refrains from soliciting money. But this represents a far too limited view of our prior cases relevant to canvassing and soliciting by religious and charitable organizations. 17 In Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), a canvasser for a religious society, who passed out booklets from door to door and asked for contributions, was arrested and convicted under an ordinance which prohibited canvassing, soliciting, or distribution of circulars from house to house without a permit, the issuance of which rested much in the discretion of public officials. The state courts construed the ordinance as aimed mainly at house-to-house canvassing and solicitation. This distinguished the case from Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938), which had invalidated on its face and on First Amendment grounds an ordinance criminalizing the distribution of any handbill at any time or place without a permit. Because the canvasser's conduct "amounted to the solicitation . . . of money contributions without a permit" Schneider, supra, at 159, 60 S.Ct., at 150, and because the ordinance was thought to be valid as a protection against fraudulent solicitations, the conviction was sustained. This Court disagreed, noting that the ordinance applied not only to religious canvassers but also to "one who wishes to present his views on political, social or economic questions," 308 U.S., at 163, 60 S.Ct., at 152, and holding that the city could not, in the name of preventing fraudulent appeals, subject door-to-door advocacy and the communication of views to the discretionary permit requirement. The Court pointed out that the ordinance was not limited to those "who canvass for private profit," ibid., and reserved the question whether "commercial soliciting and canvassing" could be validly subjected to such controls. Id., at 165, 60 S.Ct., at 152. 18 Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), involved a state statute forbidding the solicitation of contributions of anything of value by religious, charitable, or philanthropic causes without obtaining official approval. Three members of a religious group were convicted under the statute for selling books, distributing pamphlets, and soliciting contributions or donations. Their convictions were affirmed in the state courts on the ground that they were soliciting funds and that the statute was valid as an attempt to protect the public from fraud. This Court set aside the convictions, holding that although a "general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection," id., at 305, 60 S.Ct. at 904, to "condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause," id., at 307, 60 S.Ct., at 904-905, was considered to be an invalid prior restraint on the free exercise of religion. Although Cantwell turned on the free exercise clause, the Court has subsequently understood Cantwell to have implied that soliciting funds involves interests protected by the First Amendment's guarantee of freedom of speech. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 761, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363, 97 S.Ct. 2691, 2698, 56 L.Ed.2d 810 (1977). 19 In Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), an arrest was made for distributing on the public streets a commercial advertisement in violation of an ordinance forbidding this distribution. Addressing the question left open in Schneider, the Court recognized that while municipalities may not unduly restrict the right of communicating information in the public streets, the "Constitution imposes no such restraint on government as respects purely commercial advertising." 316 U.S., at 54, 62 S.Ct., at 921. The Court reasoned that unlike speech "communicating information and disseminating opinion" commercial advertising implicated only the solicitor's interest in pursuing "a gainful occupation." Ibid. 20 The following Term in Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943), the Court, without dissent, and with the agreement of the author of the Chrestensen opinion, held that although purely commercial leaflets could be banned from the streets, a State could not "prohibit the distribution of handbills in the pursuit of a clearly religious activity merely because the handbills invite the purchase of books for the improved understanding of the religion or because the handbills seek in a lawful fashion to promote the raising of funds for religious purposes." 318 U.S., at 417, 63 S.Ct., at 672. The Court reaffirmed what it deemed to be an identical holding in Schneider, as well as the ruling in Cantwell that "a state might not prevent the collection of funds for a religious purpose by unreasonably obstructing or delaying their collection." 318 U.S., at 417, 63 S.Ct., at 672. See also, Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943). 21 In the course of striking down a tax on the sale of religious literature, the majority opinion in Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), reiterated the holding in Jamison that the distribution of handbills was not transformed into an unprotected commercial activity by the solicitation of funds. Recognizing that drawing the line between purely commercial ventures and protected distributions of written material was a difficult task, the Court went on to hold that the sale of religious literature by itinerant evangelists in the course of spreading their doctrine was not a commercial enterprise beyond the protection of the First Amendment. 22 On the same day, the Court invalidated a municipal ordinance that forbade the door-to-door distribution of handbills, circulars, or other advertisements. None of the justifications for the general prohibition was deemed sufficient; the right of the individual resident to warn off such solicitors was deemed sufficient protection for the privacy of the citizen. Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943). On its facts, the case did not involve the solicitation of funds or the sale of literature. 23 Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945), held that the First Amendment barred enforcement of a state statute requiring a permit before soliciting membership in any labor organization. Solicitation and speech were deemed to be so intertwined that a prior permit could not be required. The Court also recognized that "espousal of the cause of labor is entitled to no higher constitutional protection than the espousal of any other lawful cause." Id., at 538, 65 S.Ct., at 326. The Court rejected the notion that First Amendment claims could be dismissed merely by urging "that an organization for which the rights of free speech and free assembly are claimed is one 'engaged in business activities' or that the individual who leads it in exercising these rights receives compensation for doing so." Id., at 531, 65 S.Ct., at 323. Concededly, the "collection of funds" might be subject to reasonable regulation, but the Court ruled that such regulation "must be done, and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly." Id., at 540-541, 65 S.Ct., at 327. 24 In 1951, Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, was decided. That case involved an ordinance making it criminal to enter premises without an invitation to sell goods, wares, and merchandise. The ordinance was sustained as applied to door-to-door solicitation of magazine subscriptions. The Court held that the sale of literature introduced "a commercial feature," id., at 642, 71 S.Ct., at 932, and that the householder's interest in privacy outweighed any rights of the publisher to distribute magazines by uninvited entry on private property. The Court's opinion, however, did not indicate that the solicitation of gifts or contributions by religious or charitable organizations should be deemed commercial activities, nor did the facts of Breard involve the sale of religious literature or similar materials. Martin v. Struthers, supra, was distinguished but not overruled. 25 Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976), dealt with a city ordinance requiring an identification permit for canvassing or soliciting from house to house for charitable or political purposes. Based on its review of prior cases, the Court held that soliciting and canvassing from door to door were subject to reasonable regulation so as to protect the citizen against crime and undue annoyance, but that the First Amendment required such controls to be drawn with " 'narrow specificity.' " Id., at 620, 96 S.Ct., at 1760. The ordinance was invalidated as unacceptably vague. 26 Prior authorities, therefore, clearly establish that charitable appeals for funds, on the street or door to door, involve a variety of speech interests—communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes—that are within the protection of the First Amendment. Soliciting financial support is undoubtedly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease. Canvassers in such contexts are necessarily more than solicitors for money. Furthermore, because charitable solicitation does more than inform private economic decisions and is not primarily concerned with providing information about the characteristics and costs of goods and services, it has not been dealt with in our cases as a variety of purely commercial speech.7 III 27 The issue before us, then, is not whether charitable solicitations in residential neighborhoods are within the protections of the First Amendment. It is clear that they are. "[O]ur cases long have protected speech even though it is in the form of . . . a solicitation to pay or contribute money, New York Times Co. v. Sullivan, [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)]." Bates v. State Bar of Arizona, 433 U.S., at 363, 97 S.Ct., at 2699. 28 The issue is whether the Village has exercised its power to regulate solicitation in such a manner as not unduly to intrude upon the rights of free speech. Hynes v. Mayor of Oradell, supra, 425 U.S., at 616, 96 S.Ct., at 1758. In pursuing this question we must first deal with the claim of the Village that summary judgment was improper because there was an unresolved factual dispute concerning the true character of CBE's organization. Although CBE's affidavits in support of its motion for summary judgment and describing its interests, the activities of its canvassers, and the percentage of its receipts devoted to salaries and administrative expenses were not controverted, the District Court made no findings with respect to the nature of CBE's activities; and the Court of Appeals expressly stated that the facts with respect to the internal affairs and operations of the organization were immaterial to a proper resolution of the case. The Village claims, however, that it should have had a chance to prove that the 75-percent requirement is valid as applied to CBE because CBE spends so much of its resources for the benefit of its employees that it may appropriately be deemed an organization existing for private profit rather than for charitable purposes. 29 We agree with the Court of Appeals that CBE was entitled to its judgment of facial invalidity if the ordinance purported to prohibit canvassing by a substantial category of charities to which the 75-percent limitation could not be applied consistently with the First and Fourteenth Amendments, even if there was no demonstration that CBE itself was one of these organizations.8 Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court. Grayned v. City of Rockford, 408 U.S. 104, 114-121, 92 S.Ct. 2294, 2302-2306, 33 L.Ed.2d 222 (1972); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Schneider v. State, 308 U.S., at 162-165, 60 S.Ct., at 151-152; Lovell v. Griffin, 303 U.S., at 451, 58 S.Ct., at 668; Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). See also the discussion in Broadrick v. Oklahoma, 413 U.S. 601, 612-616, 93 S.Ct. 2908, 2915-2918, 37 L.Ed.2d 830 (1973), and in Bigelow v. Virginia, 421 U.S. 809, 815-817, 95 S.Ct. 2222, 2229-2230, 44 L.Ed.2d 600 (1975). In these First Amendment contexts, the courts are inclined to disregard the normal rule against permitting one whose conduct may validly be prohibited to challenge the proscription as it applies to others because of the possibility that protected speech or associative activities may be inhibited by the overly broad reach of the statute. 30 We have declared the overbreadth doctrine to be inapplicable in certain commercial speech cases, Bates v. State Bar of Arizona, supra, 433 U.S., at 381, 97 S.Ct., at 2707, but as we have indicated, that limitation does not concern us here. The Court of Appeals was thus free to inquire whether § 22-20(g) was overbroad, a question of law that involved no dispute about the characteristics of CBE. On this basis, proceeding to rule on the merits of the summary judgment was proper. As we have indicated, we also agree with the Court of Appeals' ruling on the motion. IV 31 Although indicating that the 75-percent limitation might be enforceable against the more "traditional charitable organizations" or "where solicitors represent themselves as mere conduits for contributions," 590 F.2d, at 225, 226, the Court of Appeals identified a class of charitable organizations as to which the 75-percent rule could not constitutionally be applied. These were the organizations whose primary purpose is not to provide money or services for the poor, the needy or other worthy objects of charity, but to gather and disseminate information about and advocate positions on matters of public concern. These organizations characteristically use paid solicitors who "necessarily combine" the solicitation of financial support with the "functions of information dissemination, discussion, and advocacy of public issues." Id., at 225. These organizations also pay other employees to obtain and process the necessary information and to arrive at and announce in suitable form the organizations' preferred positions on the issues of interest to them. Organizations of this kind, although they might pay only reasonable salaries, would necessarily spend more than 25 percent of their budgets on salaries and administrative expenses and would be completely barred from solicitation in the Village.9 The Court of Appeals concluded that such a prohibition was an unjustified infringement of the First and Fourteenth Amendments. 32 We agree with the Court of Appeals that the 75-percent limitation is a direct and substantial limitation on protected activity that cannot be sustained unless it serves a sufficiently strong, subordinating interest that the Village is entitled to protect. We also agree that the Village's proffered justifications are inadequate and that the ordinance cannot survive scrutiny under the First Amendment. 33 The Village urges that the 75-percent requirement is intimately related to substantial governmental interests "in protecting the public from fraud, crime and undue annoyance." These interests are indeed substantial, but they are only peripherally promoted by the 75-percent requirement and could be sufficiently served by measures less destructive of First Amendment interests. 34 Prevention of fraud is the Village's principal justification for prohibiting solicitation by charities that spend more than one-quarter of their receipts on salaries and administrative expenses. The submission is that any organization using more than 25 percent of its receipts on fundraising, salaries, and overhead is not a charitable, but a commercial, for profit enterprise and that to permit it to represent itself as a charity is fraudulent. But, as the Court of Appeals recognized, this cannot be true of those organizations that are primarily engaged in research, advocacy, or public education and that use their own paid staff to carry out these functions as well as to solicit financial support. The Village, consistently with the First Amendment, may not label such groups "fraudulent" and bar them from canvassing on the streets and house to house.10 Nor may the Village lump such organizations with those that in fact are using the charitable label as a cloak for profitmaking and refuse to employ more precise measures to separate one kind from the other. The Village may serve its legitimate interests, but it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of Oradell, 425 U.S., at 620, 96 S.Ct., at 1760; First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421 (1978). "Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone . . .." NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963) (citations omitted). 35 The Village's legitimate interest in preventing fraud can be better served by measures less intrusive than a direct prohibition on solicitation. Fraudulent misrepresentations can be prohibited and the penal laws used to punish such conduct directly. Schneider v. State, 308 U.S., at 164, 605 S.Ct., at 152; Cantwell v. Connecticut, 310 U.S., at 306, 60 S.Ct., at 904; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., at 771, 96 S.Ct., at 1830.11 Efforts to promote disclosure of the finances of charitable organizations also may assist in preventing fraud by informing the public of the ways in which their contributions will be employed.12 Such measures may help make contribution decisions more informed, while leaving to individual choice the decision whether to contribute to organizations that spend large amounts on salaries and administrative expenses. 36 We also fail to perceive any substantial relationship between the 75-percent requirement and the protection of public safety or of residential privacy. There is no indication that organizations devoting more than one-quarter of their funds to salaries and administrative expenses are any more likely to employ solicitors who would be a threat to public safety than are other charitable organizations.13 Other provisions in the ordinance that are not challenged here, such as the provision making it unlawful for charitable organizations to use convicted felons as solicitors, Code § 22-23, may bear some relation to public safety; the 75-percent requirement does not. 37 The 75-percent requirement is related to the protection of privacy only in the most indirect of ways. As the Village concedes, householders are equally disturbed by solicitation on behalf of organizations satisfying the 75-percent requirement as they are by solicitation on behalf of other organizations. The 75-percent requirement protects privacy only by reducing the total number of solicitors, as would any prohibition on solicitation. The ordinance is not directed to the unique privacy interests of persons residing in their homes because it applies not only to door-to-door solicitation, but also to solicitation on "public streets and public ways." § 22-20. Other provisions of the ordinance, which are not challenged here, such as the provision permitting homeowners to bar solicitors from their property by posting signs reading "No Solicitors or Peddlers Invited," § 22-24, suggest the availability of less intrusive and more effective measures to protect privacy. See Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970); Martin v. Struthers, 319 U.S., at 148, 63 S.Ct., at 865. 38 The 75-percent requirement in the village ordinance plainly is insufficiently related to the governmental interests asserted in its support to justify its interference with protected speech. "Frauds may be denounced as offenses and punished by law. Trespasses may similarly be forbidden. If it is said that these means are less efficient and convenient than . . . [deciding in advance] what information may be disseminated from house to house, and who may impart the information, the answer is that considerations of this sort do not empower a municipality to abridge freedom of speech and press." Schneider v. State, supra, 308 U.S., at 164, 60 S.Ct., at 152. 39 We find no reason to disagree with the Court of Appeals' conclusion that § 22-20(g) is unconstitutionally overbroad. Its judgment is therefore affirmed. 40 It is so ordered. 41 Mr. Justice REHNQUIST, dissenting. 42 The Court holds that Art. III of the Schaumburg Village Code is unconstitutional as applied to prohibit respondent Citizens for a Better Environment (CBE) from soliciting contributions door to door. If read in isolation, today's decision might be defensible. When combined with this Court's earlier pronouncements on the subject, however, today's decision relegates any local government interested in regulating door-to-door activities to the role of Sisyphus. 43 The Court's opinion first recites the litany of language from 40 years of decisions in which this Court has considered various restrictions on the right to distribute information or solicit door to door, concluding from these decisions that "charitable appeals for funds, on the street or door to door, involve a variety of speech interests . . . that are within the protection of the First Amendment." Ante, at 632. I would have thought this proposition self-evident now that this Court has swept even the most banal commercial speech within the ambit of the First Amendment. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). But, having arrived at this conclusion on the basis of earlier cases, the Court effectively departs from the reasoning of those cases in discussing the limits on Schaumburg's authority to place limitations on so-called "charitable" solicitors who go from house to house in the village. 44 The Court's neglect of its prior precedents in this regard is entirely understandable, since the earlier decisions striking down various regulations covering door-to-door activities turned upon factors not present in the instant case. A plurality of these decisions turned primarily, if not exclusively, upon the amount of discretion vested in municipal authorities to grant or deny permits on the basis of vague or even non-existent criteria. See Schneider v. State, 308 U.S. 147, 163-164, 60 S.Ct. 146, 151-152, 84 L.Ed. 155 (1939); Cantwell v. Connecticut, 310 U.S. 296, 305-306, 60 S.Ct. 900, 904, 84 L.Ed. 1213 (1940); Largent v. Texas, 318 U.S. 418, 422, 63 S.Ct. 667, 669, 87 L.Ed. 873 (1943); Hynes v. Mayor of Oradell, 425 U.S. 610, 620-621, 96 S.Ct. 1755, 1760-1761, 48 L.Ed.2d 243 (1976). In Schneider, for example, the Court invalidated such an ordinance as applied to Jehovah's Witnesses because "[i]n the end, [the applicant's] liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer's discretion." 308 U.S., at 164, 60 S.Ct., at 152. These cases clearly do not control the validity of Schaumburg's ordinance, which leaves virtually no discretion in the hands of the licensing authority. 45 Another line of earlier cases involved the distribution of information, as opposed to requests for contributions. Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), for example, dealt with Jehovah's Witnesses who had gone door to door with invitations to a religious meeting despite a local ordinance prohibiting distribution of any "handbills, circulars or other advertisements" door to door. The Court noted that such an ordinance "limits the dissemination of knowledge," and that it could "serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas." Id., at 144, 147, 63 S.Ct., at 865. 46 Here, however, the challenged ordinance deals not with the dissemination of ideas, but rather with the solicitation of money. That the Martin Court would have found this distinction important is apparent not only from Martin' § emphasis on the dissemination of knowledge, but also from various other decisions of the same period. In Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), for example, the Court upheld an ordinance prohibiting "solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise" from entering private property without permission. The petitioner in Breard had been going door to door soliciting subscriptions for magazines. Despite petitioner's invocation of both freedom of speech and freedom of the press, the Court distinguished the "commercial feature" of the transactions from their informational overtone. See id., at 642, 71 S.Ct., at 932. Because Martin "was narrowly limited to the precise fact of the free distribution of an invitation to religious services," the Court found that it was "not necessarily inconsistent with the conclusion reached in this case." 341 U.S., at 643, 71 S.Ct., at 933. 47 Shunning the guidance of these cases, the Court sets out to define a new category of solicitors who may not be subjected to regulation. According to the Court, Schaumburg cannot prohibit door-to-door solicitation for contributions by "organizations whose primary purpose is . . . to gather and disseminate information about and advocate positions on matters of public concern." Ante, at 635. In another portion of its opinion, the majority redefines this immunity as extending to all organizations "primarily engaged in research, advocacy, or public education and that use their own paid staff to carry out these functions as well as to solicit financial support." Ante, at 636-637. This result—or perhaps, more accurately, these results seem unwarranted by the First and Fourteenth Amendments for three reasons. 48 First, from a legal standpoint, the Court invites municipalities to draw a line it has already erased. Today's opinion strongly, and I believe correctly, implies that the result here would be otherwise if CBE's primary objective were to provide "information about the characteristics and costs of goods and services," ante, at 632, rather than to "advocate positions on matters of public concern." Ante, at 635. Four years ago, however, the Court relied upon the supposed bankruptcy of this very distinction in overturning a prohibition on advertising by pharmacists. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, supra. According to Virginia Pharmacy, while "not all commercial messages contain the same or even a very great public interest element[,] [t]here are few to which such an element . . . could not be added." 425 U.S., at 764, 96 S.Ct., at 1827. This and other considerations led the Court in that case to conclude that "no line between publicly 'interesting' or 'important' commercial advertising and the opposite kind could ever be drawn." Id., at 765, 96 S.Ct., at 1827. To the extent that the Court found such a line elusive in Virginia Pharmacy, I venture to suggest that the Court, as well as local legislators, will find the line equally elusive in the context of door-to-door solicitation. 49 Second, from a practical standpoint, the Court gives absolutely no guidance as to how a municipality might identify those organizations "whose primary purpose is . . . to gather and disseminate information about and advocate positions on matters of public concern," and which are therefore exempt from Art. III. Earlier cases do provide one guideline: the municipality must rely on objective criteria, since reliance upon official discretion in any significant degree would clearly run afoul of Schneider, Cantwell, Largent, and Hynes.1 In requiring municipal authorities to use "more precise measures to separate" constitutionally preferred organizations from their less preferred counterparts, ante, at 637, the Court would do well to remember that these local bodies are poorly equipped to investigate and audit the various persons and organizations that will apply to them for preferred status. Stripped of discretion, they must be able to resort to a line-drawing test capable of easy and reliable application without the necessity for an exhaustive case-by-case investigation of each applicant.2 50 Finally, I believe that the Court overestimates the value, in a constitutional sense, of door-to-door solicitation for financial contributions and simultaneously underestimates the reasons why a village board might conclude that regulation of such activity was necessary. In Hynes v. Mayor of Oradel, this Court referred with approval to Professor Zechariah Chafee's observation that "[o]f all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection." 425 U.S., at 619, 96 S.Ct., at 1760, quoting Z. Chafee, Free Speech in the United States 406 (1954). While such activity may be worthy of heightened protection when limited to the dissemination of information, see, e. g., Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed.2d 1313 (1943), or when designed to propagate religious beliefs, see, e. g., Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.2d 1213 (1943), I believe that a simple request for money lies far from the core protections of the First Amendment as heretofore interpreted. In the case of such solicitation, the community's interest in ensuring that the collecting organization meet some objective financial criteria is indisputably valid. Regardless of whether one labels noncharitable solicitation "fraudulent," nothing in the United States Constitution should prevent residents of a community from making the collective judgment that certain worthy charities may solicit door to door while at the same time insulating themselves against panhandlers, profiteers, and peddlers. 51 The central weakness of the Court's decision, I believe, is its failure to recognize, let alone confront, the two most important issues in this case: how does one define a "charitable" organization, and to which authority in our federal system is application of that definition confided? I would uphold Schaumburg's ordinance as applied to CBE because that ordinance, while perhaps too strict to suit some tastes, affects only door-to-door solicitation for financial contributions, leaves little or no discretion in the hands of municipal authorities to "censor" unpopular speech, and is rationally related to the community's collective desire to bestow its largess upon organizations that are truly "charitable." I therefore dissent. 1 Article II of Chapter 22 regulates commercial solicitation by requiring "for profit peddlers and solicitors" to obtain a commercial license. For the purposes of Art. II, peddlers and solicitors are defined as any persons who, going from place to place without appointment, offer goods or services for sale or take orders for future delivery of goods or services. Code § 22-6. Section 22-7 requires any person "engage[d] in the business of a peddler or solicitor within the village" to obtain a license. Licenses can be obtained by application to the village collector and payment of an annual fee ranging from $10 to $25. License applications must contain a variety of information, including the kind of merchandise to be offered, the address of the applicant, the name of the applicant's employer, and whether the applicant has ever been arrested for a misdemeanor or felony. § 22-8. A license must be denied to anyone "who is not found to be a person of good character and reputation." § 22-9. Solicitation is permitted between the hours of 9 a. m. and 6 p. m., Monday through Saturday. § 22-13. Cheating, deception, or fraudulent misrepresentation by peddlers or solicitors is prohibited by § 22-12. Peddlers and solicitors are required to depart "immediately and peacefully" from the premises of any home displaying a sign, "No Solicitors or Peddlers Invited," near the main entrance. §§ 22-15 and 22-16. Persons violating the provisions of Art. II may be fined up to $500 for each offense. § 22-18. The village manager may revoke the license of any peddler or solicitor who violates any village ordinance or any state or federal law or who ceases to possess good character. § 22-11. 2 Article III of Chapter 22 includes §§ 22-19 to 22-24 of the Code. Section 22-19 defines a "charitable organization" as "[a]ny benevolent, philanthropic, patriotic, not-for-profit, or eleemosynary group, association or corporation, or such organization purporting to be such, which solicits and collects funds for charitable purposes." A "charitable purpose" is defined as "[a]ny charitable, benevolent, philanthropic, patriotic, or eleemosynary purpose." A "contribution" is defined as "[t]he promise or grant of any money or property of any kind or value, including payments for literature in excess of the fair market value of said literature." 3 Applications for charitable solicitation permits must include the following information: the names and addresses of the persons and organizations involved, the dates and times solicitation is to be undertaken, the geographic area in which solicitation will occur, and proof that the organization has complied with state laws governing charitable solicitation and is tax exempt under the Internal Revenue Code. The information contained in permit applications must be verified under oath by a responsible officer of the organization desiring to solicit funds. Completed applications, which must be accompanied by payment of a $10 fee, are submitted by the village clerk to the village board. "If the village board shall find and determine that all requirements of [Article III] have been met, a permit shall be issued specifying the dates and times at which solicitation may take place." § 22-21. Charitable solicitation permits may permit solicitation only between the hours of 9 a. m. and 6 p. m., Monday through Saturday. No person who has been convicted of a felony or is under indictment for a felony may be used as a solicitor. § 22-23. Section 22-24 provides that "[n]othing herein provided shall permit a solicitor to go upon any premises which has posted a sign indicating 'no solicitors or peddlers invited.' " 4 The "satisfactory proof" of compliance with the 75-percent requirement must include "a certified audit of the last full year of operations, indicating the distribution of funds collected by the organization, or such other comparable evidence as may demonstrate the fact that at least seventy-five per cent of the funds collected are utilized directly and solely for the charitable purpose of the organization." § 22-20. 5 Illinois law requires "[e]very charitable organization . . . which solicits or intends to solicit contributions from persons in th[e] State by any means whatsoever" to file a registration statement with the Illinois Attorney General. Ill.Rev.Stat., ch. 23, § 5102(a) (1977). The registration statement must include a variety of information about the organization and its fundraising activities. Charitable organizations are required to "maintain accurate and detailed books and records" which "shall be open to inspection at all reasonable times by the Attorney General or his duly authorized representative." § 5102(f). Registration statements filed with the Attorney General are also open to public inspection. 6 The Village appended to its answer a copy of an article appearing in a local newspaper. "Is 7 To the extent that any of the Court's past decisions discussed in Part II hold or indicate that commercial speech is excluded from First Amendment protections, those decisions, to that extent, are no longer good law. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 758-759, 762, 96 S.Ct. 1817, 1823-1824, 1825, 48 L.Ed.2d 346 (1976). For the purposes of applying the overbreadth doctrine, however, see infra, at 634, it remains relevant to distinguish between commercial and noncommercial speech. Bates v. State Bar of Arizona, 433 U.S. 350, 381, 97 S.Ct. 2691, 2707, 56 L.Ed.2d 810 (1977). 8 CBE defends the rationale of the Court of Appeals, but it also asserts that the facts concerning its purposes and its operations were uncontroverted and are sufficiently complete to demonstrate that the 75-percent limitation is invalid as applied to it. As a respondent, CBE is entitled to urge its position although the Court of Appeals did not reach it; but we need not pursue it since we do not conclude that the Court of Appeals was in error. 9 The village ordinance requires all charitable organizations that seek "to solicit contributions from persons in the village by door-to-door solicitation or the use of public streets and public ways" to obtain a charitable solicitation permit. Code § 22-20. Solicitation without a permit is prohibited. Schaumburg Ordinance No. 1052, § 1 (1974). Unlike the ordinance upheld in National Foundation v. Fort Worth, 415 F.2d 41 (CA5 1969), cert. denied, 396 U.S. 1040, 90 S.Ct. 688, 24 L.Ed.2d 684 (1970), the village ordinance has no provision permitting an organization unable to comply with the 75-percent requirement to obtain a permit by demonstrating that its solicitation costs are nevertheless reasonable. Moreover, because compliance with the 75-percent requirement depends on organizations' receipts and expenses during the previous year, there appears to be no way an organization can alter its spending patterns to comply with the ordinance in the short run. Thus, the village ordinance effectively bars all in-person solicitation by organizations who spent more than one-quarter of their receipts in the previous year on salaries and administrative expenses. Although there is some suggestion that organizations unable to comply with the 75-percent requirement may be able to obtain commercial solicitation permits, the ordinance governing issuance of such permits appears to apply only to solicitors offering goods or services for sale. Code § 22-6. 10 There is no dispute that organizations of the kind described in CBE's affidavits are considered to be nonprofit, charitable organizations under both federal and state law, despite the fact that they devote more than one-quarter of their receipts to salaries and administrative expenses. The costs incurred by charitable organizations conducting fundraising campaigns can vary dramatically depending upon a wide range of variables, many of which are beyond the control of the organization. 11 The Village Code, for example, already contains direct proscriptions of fraud by commercial solicitors. Section 22-12 makes it "unlawful for any peddler or solicitor to cheat, deceive or fraudulently misrepresent, whether through himself or through an employee, while acting as a peddler or solicitor in the village. . . ." Unlike the situation in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), where we upheld disciplinary action taken against an attorney who solicited accident victims for the purpose of obtaining remunerative employment, charitable solicitation is not so inherently conducive to fraud and overreaching as to justify its prohibition. 12 Illinois law, for example, requires charitable organizations to register with the State Attorney General's Office and to report certain information about their structure and fundraising activities. Ill.Rev.Stat., ch. 23, § 5102(a) (1977). See n. 5, supra. 13 Indeed, solicitation by organizations employing paid solicitors carefully screened in advance may be even less of a threat to public safety than solicitation by organizations using volunteers. 1 In this regard, I find somewhat surprising the Court's reference to the ordinance considered in National Foundation v. Fort Worth, 415 F.2d 41 (CA5 1969), cert. denied, 396 U.S. 1040, 90 S.Ct. 688, 24 L.Ed.2d 684 (1970), as if it were an improvement on Schaumburg's ordinance. See ante, at 635, n. 9. Fort Worth requires solicitors to demonstrate that the cost of soliciting will not exceed 20 percent of the amount expected to be raised. The Court finds appeal, however, in the ability of Fort Worth's officials to waive that requirement if the applicant can show that the costs of solicitation are "not unreasonable." See 415 F.2d, at 44, n. 2. Given the potential for abuse of this open-ended grant of discretion, I would think that Fort Worth's ordinance would be more, not less, suspect than Schaumburg's. 2 The Court implies that an organization's eligibility for tax-exempt status under state or federal law could determine its eligibility for preferred constitutional status in its fundraising efforts. See ante, at 637, n. 10. Such a rule, although superficially appealing, suffers from serious drawbacks. The availability of such exemptions and deductions is a matter of legislative grace, not constitutional privilege. See Commissioner v. Sullivan, 356 U.S. 27, 28, 78 S.Ct. 512, 513, 2 L.Ed.2d 559 (1958). See also Lewyt Corp. v. Commissioner, 349 U.S. 237, 240, 75 S.Ct. 736, 739, 99 L.Ed. 1029 (1955). Indeed, prior to the Tax Reform Act of 1976, a federal exemption was not available to any organization that devoted a "substantial part" of its activities to attempts "to influence legislation." See 26 U.S.C. § 501(c)(3), as amended by Pub.L. 94-455, 90 Stat. 1727. See also 1976 U.S.Code Cong. & Admin.News, pp. 2897, 4104-4109. Even today there are strict limitations on the amount a tax-exempt organization can spend on such activities. See 26 U.S.C. § 501(h). Nevertheless, I imagine that the lobbying activities previously excluded from, and now closely regulated by, § 501 would lie close to the core of those activities that the Court seeks to protect. For this reason, I cannot believe that the Court bases CBE's First Amendment protection on such sandy soil. Yet it gives no indication what other objectively verifiable characteristics might render an organization eligible for preferred status under the First Amendment.

23

444 U.S. 572 100 S.Ct. 800 63 L.Ed.2d 36 SEATRAIN SHIPBUILDING CORPORATION et al., Petitioners,v.SHELL OIL COMPANY et al. No. 78-1651. Argued Nov. 28, 1979. Decided Feb. 20, 1980. Syllabus Petitioner Seatrain Shipbuilding Corp. (Seatrain) received a construction-differential subsidy (CDS) under Title V of the Merchant Marine Act, 1936 (Act), to construct a supertanker, and, as required by § 506 of the Act, Seatrain and petitioner Polk Tanker Corp., the initial owner of the vessel, agreed to operate it exclusively in foreign trade except as otherwise authorized in § 506. When the vessel was completed, petitioners asked the Secretary of Commerce to terminate all restrictions on the vessel's operation in domestic trade in exchange for their fully secured note repaying in full the vessel's CDS. The Secretary granted their application. Thereafter, certain competitors in the domestic trade (respondents) brought suit in District Court seeking declaratory and injunctive relief prohibiting the Secretary from granting a permanent release from the § 506 foreign-trade-only requirement. The District Court held, inter alia, that the Secretary had the authority permanently to release vessels from trade restrictions imposed pursuant to § 506 in exchange for full CDS repayment, but remanded the case to the Secretary for consideration of the competitive consequences of granting the release in question. Apparently relying on Federal Rule of Civil Procedure 54(b), the court subsequently certified its decision as a "final judgment." The Court of Appeals reversed, concluding that by specifying certain exceptions to the foreign-trade-only requirement § 506 occupied the field and impliedly prohibited the Secretary from making any other exceptions under the Act's more general provisions. Held: 1. The District Court's determination that the Secretary was empowered to waive permanently the restrictions required by § 506 was a "final decision" certifiable under Rule 54(b) and appealable to the Court of Appeals under 28 U.S.C. § 1291, and thus this Court has jurisdiction to hear the case. Although respondents' claim that the Secretary's waiver of § 506 restrictions as to petitioners' vessel was an abuse of discretion caused the District Court to remand to the agency for consideration of the economic consequences of granting the release, respondents' request for a general declaration that the Secretary lacks authority to grant a permanent release from § 506 restrictions under any circumstances was finally decided and meets the case-or-controversy requirement of Art. III of the Constitution. Pp. 579-584. 2. The Act empowers the Secretary to approve full-repayment/permanent-release transactions of the type at issue here. On the face of the statute, the Secretary's broad contracting powers and discretion to administer the Act seem to comprehend the authority to grant permanent releases. The specific exceptions to the foreign-trade-only requirement in § 506 speak only to temporary releases from that requirement, and nothing in § 506, or in any other provision of Title V of the Act, either expressly or implicitly addresses the issue of permanent revocation of a CDS contract. Furthermore, the legislative history does not demonstrate that Congress intended to rule out permanent releases of the type involved here, and the agency has consistently concluded that the Act permits such releases. Pp. 584-596. 194 U.S.App.D.C. 7, 595 F.2d 814, reversed and remanded. Andrew J. Levander, Washington, D. C., for federal respondents supporting petitioners. William E. McDaniels, Washington, D. C., for petitioners. Amy Loeserman Klein and Stephen N. Shulman, Washington, D. C., for respondents. Mr. Justice BRENNAN delivered the opinion of the Court. 1 In 1972, petitioner Seatrain Shipbuilding Corp. (Seatrain) received a construction-differential subsidy (CDS) of $27.2 million pursuant to Title V of the Merchant Marine Act, 1936, 49 Stat. 1995, as amended, 46 U.S.C. § 1151 et seq., to construct the 225,000-deadweight-ton supertanker Stuyvesant. As required by § 506 of the Act, 46 U.S.C. § 1156, Seatrain and its affiliate, petitioner Polk Tanker Corp., the initial owner of the Stuyvesant, agreed to operate the supertanker exclusively in the foreign trade except as otherwise authorized in that section. By the time the vessel was completed in 1977, however, petitioners wanted to operate it in the domestic trade. Accordingly, they asked the Secretary of Commerce permanently to lift all restrictions on the Stuyvesant § operation in domestic commerce in exchange for their fully secured, 20-year interest-bearing note repaying in full the vessel's CDS. The Secretary granted the application, accepted the promissory note, and deleted the applicable restrictions from the CDS contract. The primary question for decision is whether the Secretary of Commerce may terminate the restrictions imposed pursuant to § 506 when the owners of a vessel constructed with a CDS repay that subsidy in full. The District Court for the District of Columbia concluded that the Secretary had such authority, Shell Oil Co. v. Kreps, 445 F.Supp. 1128 (1977). The Court of Appeals for the District of Columbia Circuit disagreed and reversed. Alaska Bulk Carriers, Inc. v. Kreps, 194 U.S.App.D.C. 7, 595 F.2d 814 (1979). We granted certiorari. 442 U.S. 940, 99 S.Ct. 2880, 61 L.Ed.2d 309 (1979). We reverse. 2 * The costs of constructing ships in American shipyards and manning them with American crews are higher than comparable costs in foreign ports. Accordingly, Congress has taken a number of steps to protect and support the United States' shipping and shipbuilding industries. The Jones Act, 46 U.S.C. § 883, has, since 1920, reserved the United States domestic trade exclusively for vessels built in this country and owned by its citizens.1 The Merchant Marine Act, 1936, 46 U.S.C. § 1101 et seq., established a number of programs to help American vessels compete effectively in foreign trade with vessels constructed and staffed abroad. Specifically, Title V of that Act, 46 U.S.C. § 1151 et seq., authorizes the Secretary of Commerce to grant a CDS for up to 50% of the cost of constructing a ship in this country. The owners of vessels built with the subsidies are required by § 506, 46 U.S.C. § 1156,2 to agree that they will operate only in foreign trade unless they come within one of two explicit statutory exceptions. Neither exception may be invoked unless the owner remits to the Government an appropriate pro rata portion of the outstanding subsidy. 3 In 1969, petitioner Seatrain began constructing a series of supertankers at the former Brooklyn Navy Yard. The venture received substantial amounts of federal aid. By its completion, the Economic Development Administration (EDA) of the Department of Commerce had advanced $5 million as a direct loan and had guaranteed 90% of $82 million in loans from other sources to help finance modernization and operation of the Navy Yard facilities and a major on-the-job training program.3 Moreover, the Department granted a CDS for each of the four supertankers built by Seatrain,4 in addition to guaranteeing various construction loans. 4 The Stuyvesant was the third of the Seatrain tankers.5 In the mid-1970's, while it was under construction, demand for such vessels began to decline in the wake of the Arab oil embargo, increasing crude oil prices and the economic problems that ensued.6 By 1977, when the vessel was completed, there was a significant oversupply of tankers on the world market and no opportunity in foreign trade for the fledgling Stuyvesant. Foreseeing this problem, the owners had begun to explore prospects for employing the vessel in the transportation of Alaskan crude from Valdez around Cape Horn to the Eastern United States and the Caribbean. This relatively new trade required sizeable tankers, and since the Jones Act restricted it to American-flag vessels7 the demand remained high despite the abundance of otherwise suitable foreign vessels. 5 In mid-1977, petitioner Polk Tanker Corp. executed an agreement with Standard Oil of Ohio (SOHIO) for a 3-year charter of the Stuyvesant for use in the Alaskan trade. The agreement was conditioned upon Polk's obtaining from the Secretary of Commerce a release from the foreign-trade-only restriction imposed pursuant to § 506. This was obtained at the end of August8 in the form of letters to Polk and Queensway Tankers, Inc., the proposed operator of the vessel. Those letters recited the findings upon which the agency based its decision. These were: (1) that there were no other opportunities for employment of the Stuyvesant, (2) that the SOHIO charter would strengthen the collateral securing obligations the Government had guaranteed, (3) that the charter might prevent default on those obligations, and (4) that failure to approve the proposal would jeopardize the continued operation of Seatrain.9 6 The complex closing of several transactions necessary to finance repayment of the CDS, refinance various other obligations, and transfer the Stuyvesant to new owners and operators was scheduled for September 23, 1977. On September 22, respondents, three competitors in the Alaskan trade, brought suit in the District Court for the District of Columbia against various Department of Commerce officials. The complaints sought declaratory and injunctive relief prohibiting the Secretary from granting a permanent release from the § 506 foreign-trade-only requirement.10 They argued (1) that the Secretary lacked authority to grant such a release and (2) that, even if the Secretary had authority to do so in certain cases, that authority should not have been exercised with regard to the Stuyvesant. In addition, they alleged violations of various procedural requirements of the Administrative Procedure Act and asserted that the Secretary was without power to accept a promissory note as repayment for the CDS. Petitioners Seatrain and Polk were permitted to intervene as defendants. 7 On November 22, 1977, ruling on the parties' cross-motions for summary judgment, the District Court held (1) that the Secretary had the authority to release vessels from trade restrictions imposed pursuant to § 506 in exchange for full CDS repayment and could accept a promissory note, (2) that releasing the Stuyvesant from such restrictions without analyzing the economic effect of that vessel's entry into the Alaskan trade was an abuse of discretion, and (3) that there existed material issues of fact which made summary judgment on portions of the Administrative Procedure Act claim improper. The court remanded the case to the Secretary for consideration of the competitive consequences of the Stuyvesant decision.11 Eight days later, on the motion of the respondents, the court amended its decision by dismissing the Administrative Procedure Act claim and—relying on Rule 54(b) of the Federal Rules of Civil Procedure—certifying its decision as a "final judgment."12 8 Respondents appealed from this certified final judgment, and a divided panel of the Court of Appeals reversed, concluding that by specifying two exceptions to the foreign-trade-only requirement § 506 occupied the field and impliedly prohibited the Secretary from making any other exceptions under the Act's more general provisions. 194 U.S.App.D.C., at 15-22, 595 F.2d, at 822-829. Judge Bazelon dissented, id., at 33, 595 F.2d, at 840, stating that he would hold that § 506 did not limit the Secretary's power in this regard. He observed that after full repayment of the CDS and appropriate interest the Stuyvesant would be on precisely the same footing as other vessels in the unsubsidized domestic fleet. II 9 We are met at the outset with the contention that we lack jurisdiction to hear this case. Raised for the first time in a footnote to the federal parties' petition for rehearing in the Court of Appeals, the argument is that the District Court's November 30 judgment and order was not a "final decision" for purposes of 28 U.S.C. § 1291 because it remanded the case to the Secretary for consideration of the economic consequences of permitting the Stuyvesant to enter the Alaskan oil trade.13 Respondents, the federal parties assert, sought but one form of relief—an order barring the Stuyvesant from competing with their own vessels. They advanced two legal theories to support that prayer, one general—that the Secretary has no power to grant a permanent release from restrictions imposed pursuant to § 506—and the other particular that even if the Secretary has the power to do so in some circumstances, the exercise of that power with regard to the Stuyvesant was an abuse of discretion. On remand, the federal parties continue, the Secretary might have concluded that the termination of § 506 restrictions was unwise. Alternatively, the Secretary might have decided to adhere to the original administrative decision and then been reversed by the courts. In either case, the federal parties argue, respondents would have obtained all the relief they sought. Accordingly, the District Court's November 30 order did not " 'en[d] the litigation on the merits and leav[e] nothing for the court to do but execute the judgment,' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting from Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945), and thus was not a "final decision." As a result, the argument concludes, the November 30, 1977, order was not appealable to the Court of Appeals and this Court is therefore without jurisdiction to hear the case. 10 The difficulty with the federal parties' argument is that it misapprehends the nature of at least one of the complaints which commenced this litigation—that of Alaska Bulk Carriers, Inc., and Trinidad Corp.14 Fairly read, that complaint seeks not only relief from competition from the Stuyvesant, but also a general declaration that the Secretary of Commerce is without power to permit any vessel constructed with the assistance of a CDS to enter the domestic trade under any circumstances save those narrow exceptions specifically mentioned in the statute itself. In this regard, the complaint alleged that the Secretary would in the future grant a Stuyvesant -like waiver to that vessel's sister ship, the Bay Ridge.15 It stated that the owners of unsubsidized vessels would be harmed by competition from the Stuyvesant "and from other CDS-built vessels with respect to which . . . the agency may likewise lift operating restrictions if this action is permitted to stand."16 And its prayer for relief sought (1) declaratory and injunctive relief relating to theStuyvesant itself, (2) a declaration that the Secretary lacks authority permanently to waive § 506 restrictions under any circumstances, (3) an injunction barring the Secretary from amending CDS contracts or taking any other action to lift § 506 restrictions, and (4) such other relief as the court deemed necessary.17 There were, in short, two claims made and two quite different sorts of relief sought.18 11 In their reply brief, the federal parties attempt to answer the contention that respondents made two separate claims for relief by asserting that as to one of them—the request for a determination that the Secretary lacked power to grant a permanent release—the case-or-controversy requirement of Art. III of the Constitution has not been satisfied. Terming the question "abstract" and "hypothetical," the federal parties maintain that this claim was in effect a request for an advisory opinion, that it could not stand alone. We disagree. In our judgment, respondents' claim that the Merchant Marine Act does not permit the Secretary to grant a permanent release from § 506 restrictions satisfies the case-or-controversy requirement quite apart from the fate of the particular decision with respect to the Stuyvesant. First, there is at least one other vessel on the horizon as to which a similar waiver may well be sought and granted—the Bay Ridge. Built in the same yard for the same purpose, faced with a similar plight, and likely to have a similar effect on the Alaskan market if the same solution to that plight is sought, the Bay Ridge is a prime candidate for release from § 506 restrictions, and the prospect of its release is sufficient to create a live controversy. In this respect, the present case is very different from Golden v. Zwickler, 394 U.S. 103, 106-107, 109-110, 89 S.Ct. 956, 958-959, 960-961, 22 L.Ed.2d 113 (1969), on which the federal parties rely. Second, the Secretary's decision to grant a full release for the Stuyvesant is clear evidence of administrative willingness to grant such releases in appropriate cases if they are in fact lawful. Accordingly, there is nothing speculative about the assertion that, unless restrained or at least given the benefit of an authoritative ruling of law by this Court, the agency will grant such waivers in the future.19 Compare Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974), and id., at 476, 94 S.Ct. at 1224 (concurring opinion), with O'Shea v. Littleton, 414 U.S. 488, 493-498, 94 S.Ct. 669, 674-677, 38 L.Ed.2d 674 (1974).20 And third, the Stuyvesant itself contributes to the concrete controversy between respondents and the agency. As a practical matter, whether that vessel operates in the Alaskan trade is likely to depend almost entirely on the outcome of this litigation. And even were it determined on review of the remand decision that under the circumstances existing at the time a waiver was improper, both the Stuyvesant and the Bay Ridge would remain in the wings as likely prospects for future waivers if circumstances were to change. Accordingly, we conclude that the respondents' claim for relief respecting the general powers of the Secretary meets the case-or-controversy requirement of Art. III. 12 Having determined that there were two separate claims, each within the jurisdiction of the courts below, we need only note that the appeal from the District Court decision comported fully with rule 54(b) of the Federal Rules of Civil Procedure.21 That Rule states in relevant part that "[w]hen more than one claim for relief is presented in an action . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." In the present case, more than one claim for relief was presented and the District Court found there was no reason for delay prior to directing the entry of final judgment as to one of the claims.22 As a result, the determination that the Secretary was empowered to waive permanently the restrictions required by § 506 was a final decision certifiable under Rule 54(b) and appealable under 28 U.S.C. § 1291. III 13 Prior to 1936, Congress assisted the American maritime industry in two ways: (1) it provided substantial low-interest loans to aid the construction of vessels destined for foreign trade, and (2) it appropriated large amounts of money for oceangoing mail contracts—amounts considerably in excess of actual cost and clearly intended as a subsidy for American shipping.23 Neither effort was very successful. Loan repayment was difficult to secure, few ships were constructed, and the hidden mail subsidy proved unwieldy in addition to being somewhat disingenuous.24 14 In 1935, President Roosevelt proposed that Congress end the subterfuge and adopt a forthright and sensibly tailored program to subsidize and stimulate American shipping and shipbuilding. The result was the Merchant Marine Act, 1936. Its basic goals were set forth in § 101, 46 U.S.C. § 1101. There Congress declared it to be the policy of the United States "to foster the development and encourage the maintenance" of a large and effective merchant marine capable of meeting the Nation's future commercial and military needs. The fleet was to be modern and efficient. And Congress intended that it be supported by substantial shipbuilding and repair facilities.25 15 The Secretary of Commerce was given broad authority to oversee administration of the Act. Thus, he was called upon to undertake a survey of the merchant marine, to note its needs, and to adopt a long-range program for meeting those needs. § 210, 46 U.S.C. § 1120. He was directed to investigate and keep current records of essential routes and lines to foreign ports, bulk-cargo carrying service requirements, needs for various types of vessels in various routes, construction and operating costs here and abroad, shipyard conditions, and new designs and technologies. § 211, 46 U.S.C. § 1121. He was authorized to devise means of encouraging use of American-flag vessels and improving those vessels in collaboration with vessel owners and shipbuilders. § 212, 46 U.S.C. § 1122. And he was empowered to "enter into such contracts, upon behalf of the United States, . . . as may, in . . . his discretion, be necessary to carry on the activities authorized by this chapter, or to protect, preserve, or improve the collateral held by the [Federal Maritime] Commission or Secretary to secure indebtedness, in the same manner that a private corporation may contract within the scope of the authority conferred by its charter." § 207, as set forth in 46 U.S.C. § 1117. 16 Central to the legislative scheme was the creation of an arsenal of grant and loan programs for use in the Secretary's efforts to stimulate domestic construction and make operation by domestic crews competitive. Included were an operating subsidy program, Title VI, 46 U.S.C. § 1171 et seq.; a program pursuant to which the Secretary could directly acquire new or reconditioned vessels and charter or sell them, Title VII, 46 U.S.C. § 1191 et seq.; a loan guarantee program, Title XI, 46 U.S.C. § 1271 et seq.; and the CDS program that lies at the core of the present litigation, Title V, 46 U.S.C. § 1151 et seq.26 Again, the Secretary's discretion in administering these programs was substantial. 17 It was recognized from the outset that substantial limits would have to be placed upon the entry of subsidized vessels into the domestic trade.27 Any other result would have been disastrous for the unsubsidized Jones Act fleet for which that trade was (and is) reserved. Burdened by higher construction costs, greater outstanding debt, and higher operating expenses, that fleet would simply have been unable to compete with new vessels enjoying the benefits of the 1936 Act. 18 The congressional response to this problem as it relates to the CDS program was §§ 506.28 Basically, that section confines subsidized vessels to the foreign trade. Congress recognized, however, that an entirely rigid prohibition on entry into domestic commerce might be impractical—incidental domestic operation on one segment of a voyage in foreign trade might well be efficient, and other circumstances might also arise in which some flexibility would be desirable. Accordingly, Congress permitted subsidized vessels to carry domestic cargoes on one leg of certain foreign voyages and provided in addition that the Secretary could authorize such vessels actually to enter the domestic trade for six months or less in any year upon finding that such entry would be "necessary or appropriate to carry out the purposes of this chapter." In an effort to ensure that subsidized vessels operating in the domestic trade pursuant to these exceptions would complete on an equal footing with unsubsidized vessels similarly employed, Congress required the repayment of that portion of the outstanding subsidy allocable to the vessel's domestic activities. 19 The Court of Appeals was of the view that the specific exceptions in § 506 marked the limit of the Secretary's authority to approve entry of subsidized vessels into the domestic trade. By its logic, detail, and legislative history, the panel majority reasoned, that section prohibits transactions like the one before us. In consequence, that court found the broad sweep of the Secretary's power under the balance of the Act irrelevant, the express language giving the Secretary authority to make and amend contracts29 unimportant, and the policy arguments advanced by the Secretary unpersuasive. 20 We disagree. On the face of the statute, the Secretary's broad contracting powers and discretion to administer the Act seem to comprehend the authority urged by petitioners here. Indeed, as the Secretary found in the present case, a permanent release from the foreign-trade-only requirement may quite directly further the general goals of the Act by protecting the Government's position as guarantor of substantial financial obligations and improving the changes that a domestic shipyard will survive. Further, we are hard pressed to find anything in § 506 that suggests that the Secretary is forbidden to approve transactions of this sort under these circumstances. Certainly nothing in the language of that section so manacles the Secretary as to require the result reached below. Rather, § 506 simply mandates that vessels enjoying the benefits of a subsidy may move in and out of domestic commerce only under narrowly circumscribed conditions. It speaks to temporary releases from the foreign-trade-only requirement, and only to such releases. Moreover, for Congress to draft a section directed to the particular problems posed by temporary entry into the domestic trade was entirely logical since such releases pose problems not present in permanent releases of the sort at issue here. Specifically, a vessel with an outstanding CDS that was completely free to enter and depart the domestic trade would be in an extraordinarily favorable competitive situation even if it was required to repay a proportionate amount of its subsidy whenever it did so. Absent some restriction on its ability to move from one market to the other, it would be a formidable force in both, capable of taking advantage of every shift in trade and profitability, skimming the cream and leaving what remains to those less mobile. It could, in a very real sense, have the best of both worlds.30 21 Section 506 responds to this problem by permitting a vessel that enjoys the benefits of a CDS to operate outside the foreign market only in narrow circumstances, generally upon a highly discretionary administrative decision, and for no more than six months a year. And we have no doubt that it would be flatly inconsistent with the congressional intent were the Secretary or this Court to conclude that a temporary release not meeting these conditions was proper. But a permanent release upon full repayment is quite different. It irrevocably locates the vessel in the unsubsidized fleet and thus poses no danger of a supercompetitor skimming the cream from each market. It creates no long-term instability. And it confers no windfall. On the contrary, at least where repayment of the CDS includes some amount reflecting capital costs which would have been incurred had no subsidy been available,31 such a transaction merely permits a once subsidized vessel to enter the domestic trade on a footing equal to that of vessels already in that trade. It was not the purpose of the Act to prohibit such entry, and we accordingly agree with the District Court that "nothing in section 506, [or] in any other provision of Title V, . . . either expressly or implicitly addresses the issue of permanent revocation of a CDS contract." 445 F.Supp., at 1135 (emphasis in original). 22 We turn now to the Court of Appeals' arguments concerning the legislative history of § 506. The panel majority was of the view that that history demonstrates that Congress addressed the problem before us and affirmatively decided not to permit the Secretary to approve transactions like the one at issue. We disagree. At most, we find the legislative history ambiguous, even puzzling. We do not find that it demonstrates that Congress has decided the present question. 23 We begin with the version of § 506 originally enacted as part of the 1936 Act. The first sentence of that version stated that it would be unlawful to operate any subsidized vessel other than exclusively in foreign trade or on incidental domestic portions of voyages in foreign trade, but provided that the Maritime Commission had authority to consent to operation that would otherwise be unlawful so long as the owner agreed to repay "an amount which bears the same proportion to the construction subsidy theretofore paid . . . as the remaining economic life of the vessel bears to its entire economic life." The second sentence provided that in cases of "emergency" the Commission could permit transfer of a subsidized vessel to "service other than exclusive operation in foreign trade" provided that no operating subsidy were paid during the emergency period and that period was limited to three months. And the third sentence specified that owners of a vessel operated on incidental domestic portions of voyages in foreign trade would have to make a proportionate subsidy repayment.32 It seems abundantly clear that this section provided for three different exceptions to the foreign-trade-only requirement: (1) subsidized vessels could also carry out incidental tasks in domestic trade (sentence one)—in which case consent of the Commission would not be required, but pro rata subsidy repayment would have to be made (sentence three), (2) such vessels could operate permanently in domestic trade upon the consent of the Commission and repayment of the unamortized portion of the subsidy (sentence one),33 and (3) such vessels could, upon a Commission finding of emergency, enter domestic trade for up to three months without subsidy repayment (sentence two). 24 In 1938, § 506 was rewritten into substantially its present form. The objective consequences of that rewriting were, first, that all the language suggesting that a permanent release from trade restrictions upon full subsidy repayment would be appropriate was deleted and, second, that the provision authorizing a 3-month "emergency" release with no subsidy repayment was altered by eliminating the emergency requirement, changing the 3-month limit to 6 months and requiring proportionate subsidy repayment. In substance, the balance of the provision was left unchanged. 25 Respondents and the Court of Appeals contend that this rewriting embodied a considered congressional judgment that permanent release upon full repayment should not be permitted. They rely to a considerable extent upon the comments of Joseph P. Kennedy, Chairman of the Maritime Commission. During hearings on the measure he stated as follows: 26 "Section 506 has been entirely rewritten to remove ambiguities and confusion. The section now provides that the owner can only engage in foreign trade exclusively with certain enumerated excepted services, for which services the owner is required to repay part of the construction-differential subsidy. There are also provisions which appear to give owners the right to engage in services other than the excepted ones, if the Commission consents to such use and the owner repays part of the construction-differential subsidy. Whether this right is restricted to the cases of emergency and to periods of 3 months as mentioned in the section, it is difficult to determine."34 27 The ambiguity referred to by Mr. Kennedy, the Court of Appeals concluded, was that hinted at in the final sentence of the quoted remarks—whether the "right to engage in services other than excepted ones" upon subsidy repayment was restricted to 3-month emergencies. And that ambiguity was resolved, the argument goes, by the decision to delete all language authorizing a permanent release and to rewrite the temporary release provision so that the "right" referred to by Mr. Kennedy could only be exercised for six months in any year. Accordingly, we are told, the intention of Congress to bar the transaction at issue here was "unmistakably manifested." 194 U.S.App.D.C., at 22, 595 F.2d, at 829. 28 We find the contention that anything was unmistakable in these snippets of legislative history exceedingly curious. In the first place, it seems scarcely possible that Congress actually thought the original version ambiguous in the regard apparently referred to by Mr. Kennedy. As we have already noted, no reading of that provision other than one permitting permanent waiver is possible given the mechanism set forth for calculation of the amount of subsidy repayment due.35 Moreover, there is in fact no indication that Congress intended to make the major alterations claimed. Indeed, the House Report states that "[n]o fundamental change in the original purpose of the section has been effected,"36 and the Senate Report, while to some extent tracking Mr. Kennedy's comments, seems to identify the major change effected by the amendments as the addition of language making it "perfectly clear that unless the owner operates exclusively in foreign trade, he must repay a portion of the construction-differential subsidy for any service in which the vessel is engaged which includes domestic ports. . . ."37 There is no language suggesting that Congress intended to rule out permanent releases of the type at issue here.38 29 We do not go so far as to assert with confidence that the deletion of the authorization contained in the second half of the first sentence of the 1936 version was inadvertent. Rather we are simply unsure of the precise significance of that deletion. What does seem clear is that it did not represent a considered congressional judgment that the permanent-release/full-repayment transaction before us should be prohibited. IV 30 Our conclusion that Congress did not forbid the transactions here at issue is buttressed by two additional factors. First, the agency has consistently interpreted the Act to permit full-repayment/permanent-release arrangements.39 Thus, in 1964 two vessels owned by Grace Line were permitted to repay the unamortized portion of subsidies in exchange for the removal of restrictions on their entry into domestic trade.40 And in late 1976 and early 1977 two conditional requests for permanent release were granted to the owners of vessels employed in the Virgin Islands trade. The owners were concerned with the prospect that that trade might in the future be classified as domestic and were informed that they could obtain waivers if that eventuality were to occur.41 While the agency's rationale has not always been entirely persuasive,42 it has not wavered from its general understanding of its powers and the extent to which their exercise is consistent with the goals of the Act. 31 More importantly, in 1971 and 1972 Congress seems clearly to have contemplated transactions of the sort challenged here. In 1972, a new § 1104(a)(3), 86 Stat. 911, 46 U.S.C. § 1274(a)(3), was added to the Act. As originally proposed, the section provided that the agency could aid in financing repayment of "any amount of construction-differential subsidy paid with respect to a vessel pursuant to Title V of this Act . . . in order to release such vessel from all restrictions imposed as a result of the payment of [that] subsidy. . . ."43 As enacted, the section did not include the language relating to release from all restrictions. The House Committee explained the deletion as follows: 32 "In the entire history of the administration of the 1936 Act there has been only one instance where a construction-differential subsidy repayment, authorized by the Secretary under very special circumstances, could have called into play the provisions of this paragraph. Your Committee questions the desirability of general legislation to deal with such an unusual situation, and feels that Title XI assistance should be extended to all instances of subsidy repayments under Title V, so as to include the relatively frequent situation of repayments under the first sentence of section 506 of the Act. Your Committee has therefore amended the legislation by deleting the language [relating to release from all restrictions]. This paragraph in Title XI does not in any way extend or affect the application of Title V of the Act."44 33 The understanding of the 92d Congress seems clear. And while the views of subsequent Congresses cannot override the unmistakable intent of the enacting one, Teamsters v. United States, 431 U.S. 324, 354, n. 39, 97 S.Ct. 1843, 1864, n. 39, 52 L.Ed.2d 396 (1977), such views are entitled to significant weight, NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974), and particularly so when the precise intent of the enacting Congress is obscure. V 34 In conclusion, we hold that the Act empowers the Secretary to approve full-repayment/permanent-release transactions of the type at issue here. We express no view upon respondents' claim that if such authority exists under the Act full repayment may not be made by promissory note. This issue was not addressed by the Court of Appeals and is open for its consideration on remand. Further, we express no view upon the merits of the Secretary's particular exercise of discretion with regard to the Stuyvesant since that issue is not before us. 35 Reversed and remanded. 1 Some form of prohibition on use of foreign vessels in domestic trade predates the Jones Act by more than a century. See, e. g., Act of Mar. 1, 1817, 3 Stat. 351. See generally G. Gilmore & C. Black, The Law of Admiralty 963, and nn. 34 and 35 (2d ed. 1975). 2 Section 506 of the Act, 49 Stat. 1999, as amended, 46 U.S.C. § 1156, provides as follows: "Every owner of a vessel for which a construction-differential subsidy has been paid shall agree that the vessel shall be operated exclusively in foreign trade, or on a round-the-world voyage, or on a round voyage from the west coast of the United States to a European port or ports which includes intercoastal ports of the United States, or a round voyage from the Atlantic coast of the United States to the Orient which includes intercoastal ports of the United States, or on a voyage in foreign trade on which the vessel may stop at the State of Hawaii, or an island possession or island territory of the United States, and that if the vessel is operated in the domestic trade on any of the above-enumerated services, he will pay annually to the Secretary of Commerce that proportion of one-twenty-fifth of the construction-differential subsidy paid for such vessel as the gross revenue derived from the domestic trade bears to the gross revenue derived from the entire voyages completed during the preceding year. The Secretary may consent in writing to the temporary transfer of such vessel to service other than the service covered by such agreement for periods not exceeding six months in any year, whenever the Secretary may determine that such transfer is necessary or appropriate to carry out the purposes of this chapter. Such consent shall be conditioned upon the agreement by the owner to pay to the Secretary, upon such terms and conditions as he may prescribe, an amount which bears the same proportion to the construction-differential subsidy paid by the Secretary as such temporary period bears to the entire economic life of the vessel. No operating-differential subsidy shall be paid for the operation of such vessel for such temporary period." 3 Seatrain also invested some $38 million of its own funds in the project. 4 The first two tankers, the Brooklyn and the Williamsburg, initially found employment in the foreign trade and subsequently were placed in layup. App. 112. The decision in this case may have some bearing on the fate of the fourth, the Bay Ridge. See infra, at 580-582. 5 In addition to the $27.2 million CDS, loans of $30.2 million were guaranteed under Title XI of the Act, 46 U.S.C. § 1271 et seq., for construction of the Stuyvesant. Similar financial support was made available for the Bay Ridge, which received a CDS of $28.8 million and Title XI loan guarantees of $34.5 million. 6 This drop in tanker demand had caused Seatrain to halt construction of both the Stuyvesant and the Bay Ridge in early 1975—a halt that necessitated the layoff of most of the shipyard's 2,500 employees and virtually shut the facility down. The yard reopened and construction resumed only after the EDA provided 90% guarantees for additional bank loans of $40 million. From that time on Seatrain apparently was on the lookout for prospects for employing the two supertankers in the domestic trade. 7 See 46 U.S.C. § 883; n. 1, supra. 8 The preceding month, Polk had sought permission to operate the Stuyvesant in coastal trade for three years in exchange for pro rata repayment of the CDS. This application was withdrawn in the face of strong protests from prospective competitors. 9 Letter of James S. Dawson, Jr., Secretary of Maritime Administration, to Polk Tanker Corp., Aug. 31, 1977, App. 530. 10 Two separate complaints were filed, one by Alaska Bulk Carriers, Inc., and Trinidad Corp., and the other by Shell Oil Co. They were consolidated before the District Court. 11 The remand proceedings were completed on January 6, 1978, prior to oral argument in the Court of Appeals. The Secretary concluded that there would continue to be a shortage of tankers in the Alaskan trade for the foreseeable future and that the entry of the Stuyvesant into that trade would accordingly have little or no adverse effect on the respondents. Id., at 568-569. Thereafter, Shell filed suit in the District Court challenging these findings. Its complaint was dismissed without prejudice following the decision of the Court of Appeals in the present case. 12 Id., at 558-559. 13 Title 28 U.S.C. § 1291 states that "[t]he courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . ." 14 The Alaska Bulk Carriers complaint is reproduced at App. 45-63. 15 Complaint &Par; 33 and 42, App. 57, 61-62. 16 Id., ¶ 41, App. 61. 17 Id., at 62-63. The Shell complaint is reproduced at id., at 6-17. It focuses far more specifically on the Stuyvesant, and were it the only complaint before us there might be more force to the federal parties' characterization of this litigation as presenting a single claim supported by two theories. In that event, we would have had to explore some of the alternative bases of jurisdiction advanced by the respondents. The clear presence of two claims in the Alaska Bulk Carriers complaint makes such an inquiry unnecessary. 18 The two are not, of course, unrelated. In particular, a favorable disposition of respondents' statutory claim would leave respondents with no reason to press the administrative one. The contrary proposition, however, is not true. The complaint strongly suggests that respondents would have pressed for resolution of their statutory claim even if the Secretary or the courts had concluded that under the circumstances existing at the time the administrative determination was made the Stuyvesant could not lawfully have been permitted to enter the Alaskan trade. 19 Prior administrative practice supports this conclusion as well. See infra, at 595. 20 See also Abbott Laboratories v Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 1517-1518, 18 L.Ed.2d 681 (1967). 21 We recognize that the District Court could not by purporting to comply with Rule 54(b) render final for purposes of 28 U.S.C. § 1291 a decision that was in fact not final. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742-743, 96 S.Ct. 1202, 1205-1206, 47 L.Ed.2d 435 (1976); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297 (1956). These cases make clear that Rule 54(b) may properly be applied only to actions in which there has been a final decision on one or more but fewer than all the multiple claims raised. This condition is fully satisfied here, and the federal parties' reliance on Liberty Mutual is thus misplaced. There the District Court had made a determination of liability but had finally disposed of none of the original plaintiff's prayers for relief. Accordingly, Rule 54(b) was not applicable. Here, one of the respondents' claims for relief was actually decided against them. 22 App. 558-559. All parties proceeded as though the November 30 order were final. Indeed, even the federal parties initially appealed from that judgment, although that appeal was later dismissed on the federal parties' motion. Brief for Respondents Alaska Bulk Carriers, Inc., et al. 36, n. 26. 23 See H.R. Doc. No. 118, 74th Cong., 1st Sess., 1-3 (1935) (message from the President). In addition to these measures aimed at making it possible for American vessels to compete in foreign trade, of course, the Jones Act, 46 U.S.C. § 883, reserved the domestic trade for American vessels. See supra, at 574-575, and n. 1. 24 H.R. Doc. No. 118, supra, at 3-19 (Report of the Postmaster General). 25 Section 101, 49 Stat. 1985, as amended, provides in full as follows: "It is necessary for the national defense and development of its foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service essential for maintaining the flow of such domestic and foreign water-borne commerce at all times, (b) capable of serving as a naval and military auxiliary in time of war or national emergency, (c) owned and operated under the United States flag by citizens of the United States, insofar as may be practicable, (d) composed of the best-equipped, safest, and most suitable types of vessels, constructed in the United States and manned with a trained and efficient citizen personnel, and (e) supplemented by efficient facilities for shipbuilding and ship repair. It is declared to be the policy of the United States to foster the development and encourage the maintenance of such a merchant marine." 46 U.S.C. § 1101. 26 The first section dealing with the CDS program, § 501, 46 U.S.C. § 1151, gives the Secretary considerable discretion to process, accept, and reject subsidy applications. Sections 502 and 504, 46 U.S.C. §§ 1152, 1154, authorize him to subsidize construction either by contracting directly with a shipyard for a vessel and then selling the completed ship to private parties at a cost corresponding to the cost of constructing a similar vessel abroad, or by contracting to pay only the appropriate CDS to the shipyard and letting the owner-operator remit the balance of the cost to the yard and take title directly. Those sections also set forth means of calculating foreign costs and subsidies, various limitations on such subsidies, terms of sale, and other requirements. Section 503, 46 U.S.C. § 1153, requires that subsidized vessels be documented under the laws of the United States and spells out various financial requirements. Section 505, 46 U.S.C. § 1155, requires that domestic shipyards and materials be used to construct subsidized vessels. And § 506, 46 U.S.C. § 1156, see n. 2, supra, contains the requirement that owners of subsidized vessels agree not to operate in domestic commerce except as specifically provided. 27 H.R. Doc. No. 118, 74th Cong., 1st Sess., 22 (1935) (Report of the Interdepartmental Committee on Shipping Policy). See also H.R.Rep.No.1277, 74th Cong., 1st Sess., 22 (1935) (describing 1935 version of the Act and noting that the Government may in certain circumstances consent to the operation of a subsidized vessel in the domestic trade "in which case the amount of the subsidy shall be repaid to the United States proportionately . . ."). 28 See n. 2, supra. 29 See § 504 of the Act, 46 U.S.C. § 1154, and § 207, 46 U.S.C. § 1117. The former provision expressly authorizes the Secretary to make and amend CDS contracts. 30 The discussion in the text demonstrates that regardless of subsidy repayment there is considerable reason to restrict the extent to which subsidized vessels may enter and exit the domestic market. The need for limits is heightened by the fact that proportionate subsidy repayment will generally fail to equalize the actual costs borne by owners of subsidized and unsubsidized vessels in domestic commerce. The problem is that the repayment formula in § 506 does not require the subsidized vessel to make any repayment to compensate for the interest it has not had to pay. To give a somewhat oversimplified example, compare two hypothetical vessels that operate for six months in domestic commerce, one unsubsidized and constructed with a $100 million, 10% loan, and the other subsidized and built with a $50 million CDS and a $50 million, 10% loan. During a given 6-month period the former vessel's interest will be $5 million (1/2 x 10% x $100 million). The latter will pay interest of $2.5 million (1/2 x 10% x $50 million) and a CDS repayment of $1.25 million (6/240 (months' useful life) x $50 million). In short, the subsidized vessel's expenses will be $1.25 million less, and its competitive posture all the more formidable. On the importance of interest in the permanent-release/full-repayment situation, see infra, this page, and n. 31. 31 The need for some payment reflecting avoided capital costs was highlighted by Judge Bazelon's dissent to the opinion below. Alaska Bulk Carriers, Inc. v. Kreps, 194 U.S.App.D.C. 7, 36, n. 15, 595 F.2d 814, 843, n. 15 (1979). In their brief, the federal parties represent that, while the Secretary originally concluded that no payment for interest would be required, the agency now intends to seek a reasonable amount of interest. Brief for Federal Parties 54, n. 59. Failure to do so might raise serious questions of inconsistency with the entire thrust of the Act. 32 As originally enacted, Section 506, 49 Stat. 1999, provided in its entirety as follows: "It shall be unlawful to operate any vessel, for the construction of which any subsidy has been paid pursuant to this title, other than exclusively in foreign trade, or on a round-the-world voyage or a round voyage from the west coast of the United States to a European port or ports or a round voyage from the Atlantic coast to the Orient which includes intercoastal ports of the United States, or on a voyage in foreign trade on which the vessel may stop at an island possession or island territory of the United States, unless the owner of such vessel shall receive the written consent of the Commission so to operate and prior to such operation shall agree to pay to the Commission, upon such terms and conditions as the Commission may prescribe, an amount which bears the same proportion to the construction subsidy theretofore paid or agreed to be paid (excluding cost of national-defense features as hereinbefore provided), as the remaining economic life of the vessel bears to its entire economic life. If an emergency arises which, in the opinion of the Commission, warrants the temporary transfer of a vessel, for the construction of which any subsidy has been paid pursuant to this title, to service other than exclusive operation in foreign trade, the Commission may permit such transfer: Provided, That no operating differential subsidy shall be paid during the duration of such temporary or emergency period, and such period shall not exceed three months. Every contractor receiving a contract for a construction-differential subsidy under the provisions of this title shall agree that if the subsidized vessel engages in domestic trade on a round-the-world voyage or a round voyage from the west coast of the United States to a European port or ports or loads or discharges cargo or passengers at an island possession or island territory as permitted by this section, that the contractor will repay annually to the Commission that proportion of one-twentieth of such construction subsidy as the gross revenue of such protected trade bears to the gross revenue derived from the entire voyages completed during the preceding year." 33 The Court of Appeals conceded that permanent domestic operation was permitted under this second exception, and respondents appear reluctantly to have followed suit. Further, as the Court of Appeals recognized, this reading is buttressed by the legislative history of the 1936 Act. See 194 U.S.App.D.C., at 19, n. 43, 595 F.2d, at 826, n. 43 (citing legislative history). Moreover, the statute itself admits of no other interpretation. It provides for repayment of "an amount which bears the same proportion to the construction subsidy . . . as the remaining economic life of the vessel bears to its entire economic life." That amount necessarily would represent the entire portion of the subsidy allocable to the vessel's remaining life—for a new vessel it would constitute the entire subsidy, for a vessel halfway through its life, half the subsidy, etc. It is hardly conceivable that Congress would have intended repayment of the entire unamortized subsidy in exchange for only a temporary release from the foreign-trade-only requirement. Thus, only permanent release could have been contemplated. 34 Amending Merchant Marine Act, 1936: Hearings on H.R. 8532 before the House Committee on Merchant Marine and Fisheries, 75th Cong., 2d and 3d Sess., 8 (1937-1938). 35 See n. 33, supra. 36 H.R.Rep.No.2168, 75th Cong., 3d Sess., 21 (1938). 37 S.Rep. No. 1618, 75th Cong., 3d Sess., 13 (1938). Similarly, the House Report stated that under the new version "the obligations of the owner to repay part of the subsidy are clearly defined." H.R.Rep.No.2168, supra, at 21. Petitioners argue that such language supports the contention that the ambiguity actually troubling to Congress was whether proportional subsidy repayment would be required for temporary or incidental use in domestic trade and had nothing to do with the permanent-release issue. 38 Interestingly, one of the spokesmen for unsubsidized carriers who testified during the Senate hearings suggested that Congress should substitute for the amendments to § 506 then under discussion a new section "prohibiting subsidized vessels and vessels which have at any time been subsidized, from the intercoastal service." Amending The Merchant Marine Act of 1936: Hearings on S. 3078 before the Senate Committee on Commerce and the Committee on Education and Labor, 75th Cong., 2d Sess., pt. 2, p. 44 (1937). 39 The relevant precedents are listed in Affidavit of James S. Dawson, Jr., Secretary of Maritime Administration, App. 164-166. 40 Comptroller General Decision B-155039, 44 Comp.Gen. 180 (1964). The Court of Appeals sought to distinguish the Grace Line precedent on grounds the subsidies there were not used in initial construction of the vessels, but rather to convert them from cargo to container. We fail to see the relevance of this distinction. 41 App. 165. 42 See 194 U.S.App.D.C., at 35, 595 F.2d, at 842 (dissenting opinion of Judge Bazelon criticizing administrative rationale in the Grace Line case). 43 H.R. 9756, 92d Cong., 1st Sess., § 3 (1971), U.S.Code Cong. & Admin.News, pp. 3851, 3859. 44 H.R.Rep.No.92-688, p. 10 (1971).

89

444 U.S. 527 100 S.Ct. 774 63 L.Ed.2d 1 William H. STAFFORD, Jr., et al., Petitioners,v.John BRIGGS et al. William E. COLBY and Vernon A. Walters, Petitioners, v. Rodney D. DRIVER et al. Nos. 77-1546, 78-303. Argued April 24, 1979. Reargued Nov. 7, 1979. Decided Feb. 20, 1980. Syllabus In No. 77-1546, respondents, who had been among those subpoenaed to appear before a federal grand jury in Florida investigating a possible conspiracy to cause a riot, brought suit in the United States District Court for the District of Columbia against petitioners (the then United States Attorney and Assistant United States Attorney for the Northern District of Florida, and a Federal Bureau of Investigation agent) and a Department of Justice attorney, individually and in their official capacities, alleging a conspiracy to deprive respondents of various statutory and constitutional rights, and seeking damages and a declaratory judgment. Petitioners, each of whom resided in Florida, were served by certified mail, and the Department of Justice attorney, who resided in the District of Columbia, was served personally. Respondents relied on § 2 of the Mandamus and Venue Act of 1962 (Act), 28 U.S.C. § 1391(e), which provides in part that "[a] civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority . . . may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, or (2) the cause of action arose . . ., or (4) the plaintiff resides if no real property is involved in the action," and that delivery of the summons and complaint to the officer in such an action may be made by certified mail beyond the territorial limits of the district in which the action is brought. The District Court dismissed the action, ruling that venue was improper and that the court lacked in personam jurisdiction over petitioners. The Court of Appeals reversed, holding that § 2 permits damages actions against federal officials to be brought in any district in which any one defendant resides, and that since the Department of Justice attorney was a resident of the District of Columbia venue there was proper. In No. 78-303, respondents, whose mail between the United States and the Soviet Union had allegedly been opened by the Central Intelligence Agency, brought suit in the United States District Court for the District of Rhode Island against petitioners (the then Director and Deputy Director of the CIA) and others, in their individual and official capacities, alleging that interference with respondents' mail violated their constitutional rights, and seeking damages, as well as declaratory and injunctive relief. Petitioners and the other defendants were served outside of Rhode Island by certified mail. The District Court denied the defendants' motion to dismiss the complaint for lack of personal jurisdiction, improper venue, and insufficiency of process, but certified the questions involved for an immediate appeal. The Court of Appeals affirmed the District Court's order as to petitioners, who were CIA officials when the complaint was filed, but reversed as to those defendants who had left their Government positions at the time of filing, holding that § 2 applied to damages actions against federal officials in their individual capacities and provided the mechanism for obtaining personal jurisdiction over them, and that accordingly venue was proper in Rhode Island because one of the respondents resided there. Held: Section 2 of the Act does not apply to actions for money damages brought against federal officials in their individual capacities. Pp. 533-545. (a) Section 2's language "is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority" can reasonably be read as describing the character of the defendant at the time of suit, and, so read, limits a covered "civil action" to one against a federal official who is at that time acting, or failing to act, in an official or apparently official way. Such a "civil action" is that referred to in § 1 of the Act, 28 U.S.C. § 1361, which gives district courts jurisdiction of "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Pp. 536-543. (b) The Act's legislative history clearly indicates that Congress intended nothing more than to provide nationwide venue for the convenience of individual plaintiffs in actions that are nominally against an individual officer but are in reality against the Government. A suit for money damages which must be paid out of the pocket of the private individual who happens to be—or formerly was—employed by the Government plainly is not one "essentially against the United States," and thus is not encompassed by the venue provisions of § 2. Pp. 536-543. (c) If § 2 were construed to govern damages actions against federal officers individually, suits could be brought against those officers while in Government service—and could be pressed even after the officer has left service—in any one of the 95 federal districts covering the 50 states and other areas within federal jurisdiction. This would place federal officers, solely by reason of their Government service, in a very different posture in personal damages suits from that of all other persons, since under 28 U.S.C. § 1391(b) damages suits against private persons must be brought in the district where all the defendants reside or in which the claim arose. Such was not the intent of Congress. Pp. 544-545. No. 77-1546, 186 U.S.App.D.C. 170, 569 F.2d 1; and No. 78-303, 577 F.2d 147, reversed and remanded. 1 Peter M. Brown, New York City, for petitioners in No. 77-1546. 2 Doris Peterson, New York City, for respondents in No. 77-1546. 3 Earl H. Nemser, New York City, for petitioners in No. 78-303. 4 Elinor H. Stillman, Washington, D. C., for United States, as amicus curiae, by special leave of Court, and Melvin L. Wulf, New York City, for respondents in No. 78-303. 5 Mr. Chief Justice BURGER, delivered the opinion of the Court. 6 We granted certiorari in these cases to decide whether the venue provisions contained in § 2 of the Mandamus and Venue Act of 1962, 28 U.S.C. § 1391(e), apply to actions for money damages brought against federal officials in their individual capacities. 439 U.S. 1113, 99 S.Ct. 1015, 59 L.Ed.2d 71 (1979). 7 * No. 77-1546 Stafford et al. v. Briggs et al. 8 In 1972, petitioner William Stafford was United States Attorney and petitioner Stuart Carrouth was an Assistant United States Attorney for the Northern District of Florida. Guy Goodwin was an attorney in the Department of Justice.1 Together they conducted grand jury proceedings in Florida, inquiring into the possibility that various individuals had conspired and engaged in interstate travel with intent to cause a riot. Respondents were among those subpoenaed to appear. At the request of respondents' counsel, the District Judge responsible for the proceedings called Goodwin to the stand and asked him to state, under oath, whether any of the witnesses represented by respondents' counsel was an agent or informant of the Government. Goodwin replied that none was. 9 Respondents later brought this suit in the United States District Court for the District of Columbia against Goodwin, Stafford, Carrouth, and petitioner Claude Meadow, an agent for the Federal Bureau of Investigation. Each was sued individually and in his official capacity. Respondents alleged that Goodwin had testified falsely in furtherance of a conspiracy among petitioners and Goodwin to deprive respondents of various statutory and constitutional rights. Each respondent sought a declaratory judgment, $50,000 in compensatory damages, and $100,000 in punitive damages. Petitioners, each of whom resided in Florida, were served by certified mail; Goodwin, whose residence was in the District of Columbia, was served personally. 10 Respondents relied on § 2 of the Mandamus and Venue Act of 1962, which, as amended and codified in Title 28 of the United States Code, provides: 11 "§ 1391. Venue generally 12 * * * * * 13 "(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party. 14 "The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought." 15 Petitioners requested transfer of the action to the Northern District of Florida, or, alternatively, dismissal for improper venue and insufficiency of process. The District Court denied the motion to transfer but granted the motion to dismiss, ruling that venue was improper and that the court lacked in personam jurisdiction over the petitioners.2 16 Respondents appealed the District Court's order dismissing the case against petitioners, and the Court of Appeals for the District of Columbia Circuit reversed, holding that 28 U.S.C. § 1391(e) permits damages actions against federal officials to be brought in any district in which any one defendant resides. Briggs v. Goodwin, 186 U.S.App.D.C. 170, 569 F.2d 1 (1977). Because Goodwin was a resident of the District of Columbia, venue there was proper. The court also held that there was no constitutional infirmity in the statute as applied. It refused to apply the "minimum contacts" analysis of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and held that in a case such as this there is no constitutional requirement that defendants have any contacts with the place in which a particular federal court sits before they may be sued in that court. No. 78-303 17 Colby et al. v. Driver et al. 18 From 1953 to 1973 at the International Airport in New York, the Central Intelligence Agency opened and made photographic copies of certain mail traveling between the United States and the Soviet Union.3 19 Petitioner Vernon Walters was appointed Deputy Director of Central Intelligence in 1972; petitioner William Colby was appointed Director of Central Intelligence in 1973. Both petitioners were in office in 1975 when respondents, acting on behalf of themselves and others whose mail had allegedly been opened by the CIA, brought suit in the United States District Court for the District of Rhode Island. Respondents alleged that the interference with their mail to and from the Soviet Union violated their constitutional rights. Their suit, brought against both present and former federal officials in their individual and official capacities, requested declaratory, injunctive, and monetary relief, including $20,000 for each letter opened and punitive damages of $100,000 for each member of the plaintiff class. 20 Petitioners and the other defendants were served outside of Rhode Island by certified mail. All the defendants moved to dismiss the complaint for lack of personal jurisdiction, improper venue, and insufficiency of process, claiming that no defendant resided in or had substantial contacts with Rhode Island and that the complaint failed to allege that any activity had occurred there. The District Court denied these motions but certified the questions involved for an immediate appeal. 21 The Court of Appeals for the First Circuit affirmed the order of the District Court as to petitioners, who were CIA officials when the complaint was filed, but it reversed as to those defendants who had left their Government positions at the time of filing. Driver v. Helms, 577 F.2d 147 (1978).4 The court held that § 1391(e) applied to damages actions against federal officials in their individual capacities and provided the mechanism for obtaining personal jurisdiction over them. Venue was proper in Rhode Island because one of the respondents resided there. The court also rejected petitioners' challenge to the constitutionality of the statute, ruling that minimum contacts analysis was not relevant in this situation. II 22 Soon after the passage of the Judiciary Act of 1789, 1 Stat. 73, this Court held that Congress had not granted the federal trial courts generally the power to issue writs of mandamus. McIntire v. Wood, 7 Cranch 504, 3 L.Ed. 420 (1813). The federal courts in the District of Columbia, which derived power to issue the writ from the common law of the State of Maryland, were the sole exception. Kendall v. United States ex rel. Stokes, 12 Pet. 524, 9 L.Ed. 1181 (1838). 23 To avoid this jurisdictional obstacle, litigants seeking mandamus-type relief outside of the District of Columbia often brought suits for injunctive or declaratory relief instead. But in most cases a superior federal officer was an indispensable party. See, e. g., Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 91 L.Ed. 1823 (1947). Because of the legal fiction that officers of such rank resided only where they were stationed usually the District of Columbia—effective service could be obtained only there. And with the restrictive venue provisions then in effect, joinder of such an official required that the action be brought in the District of Columbia. See 28 U.S.C. § 1391(b) (1946 ed., Supp. II), amended in Pub.L. 89-714, 80 Stat. 1111 (1966). The net result was that persons in distant parts of the country claiming injury by reason of the acts or omissions of a federal officer or agency were faced with significant expense and inconvenience in bringing suits for enforcement of claimed rights. 24 In response to this problem, Congress enacted the Mandamus and Venue Act of 1962. Section 1 of the Act, 28 U.S.C. § 1361, provides that actions in the nature of mandamus can be brought in any district court of the United States.5 Section 2 of the Act, 28 U.S.C. § 1391(e), provides a similarly expanded choice of venue and authorizes service by certified mail on federal officers or agencies located outside the district in which such a suit is filed. 25 The 1962 legislation thus makes it more convenient for aggrieved persons to file actions in the nature of mandamus. Respondents argue, however, that much more was intended. They contend that by using the general language "civil action," Congress intended to include in the expanded venue provision not only mandamus-type actions but all civil actions, including those seeking money damages from federal officers as individuals. 26 The language of § 1391(e) does refer to "a civil action." Recitation of that fact, however, but begins our inquiry, as this Court noted over a century ago when faced with a similar problem of statutory interpretation: 27 "The general words used in the clause . . . taken by themselves, and literally construed, without regard to the object in view, would seem to sanction the claim of the plaintiff. But this mode of expounding a statute has never been adopted by any enlightened tribunal—because it is evident that in many cases it would defeat the object which the Legislature intended to accomplish. And it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute . . . and the objects and policy of the law. . . ." Brown v. Duchesne, 19 How. 183, 194, 15 L.Ed. 595 (1857). 28 Looking first to "the whole statute," two things are apparent: (1) § 1 of the Mandamus and Venue Act of 1962 is explicitly limited to "action[s] in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. (2) The "civil action" referred to in § 2 of the Act is one "in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority . . . ." 28 U.S.C. § 1391(e) (emphasis added). The highlighted language, cast by Congress in the present tense, can reasonably be read as describing the character of the defendant at the time of the suit. So read, it limits a covered "civil action" to one against a federal official or agency who is at that time acting—or failing to act—in an official or apparently official way.6 Such "civil actions" are those referred to in § 1 of the Act, i. e., "action[s] in the nature of mandamus." 29 Our analysis does not stop with the language of the statute; we must also look to "the objects and policy of the law." Brown v. Duchesne, 19 How., at 194, 15 L.Ed. 595. In order to "give [the Act] such a construction as will carry into execution the will of the Legislature . . . according to its true intent and meaning," ibid., we turn to the legislative history. Schlanger v. Seamans, 401 U.S. 487, 490, n. 4, 91 S.Ct. 995, 997, 28 L.Ed.2d 251 (1971). See also United States v. Culbert, 435 U.S. 371, 374, n. 4, 98 S.Ct. 1112, 1114, 55 L.Ed.2d 349 (1978); Train v. Colorado Public Interest Research Group, 426 U.S. 1, 9-10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976). III 30 H.R. 10089, 86th Cong., 2d Sess. (1960), was a precursor of the bill which eventually became the 1962 Act. Congressman Budge, the author of H.R. 10089, explained its purpose: 31 "As it is now, there is no opportunity for a judicial review of the action of any decision that is made by a Federal officer in charge out there [in the field] no matter how arbitrary or capricious, because it is too expensive to come back here [to Washington, D. C.] to litigate it." Hearings on H.R. 10089 before Subcommittee No. 4 of the House Committee on the Judiciary, 86th Cong., 2d Sess., 19-20 (May 26 and June 2, 1960).7 32 As often happens, the dialogue between witnesses, Members, and Committee Counsel reveals considerable initial confusion as to the extent of the problem and the proposed solution. Of course, the very purpose of hearing witnesses is to expose problems, probe for solutions, and reach a consensus. At one point Congressman Poff, in an obvious effort to clarify the responses, asked the Department of Justice witness, Donald MacGuineas: 33 "Mr. POFF. Wouldn't you say the author's objective is to give a citizen who has a legitimate complaint against his Government the right to sue his Government at the place where the wrong was committed? 34 "Mr. MacGUINEAS. The difficulty, if I may say so, Congressman, with your statement, is you speak of the right to sue his Government. Now, that proposition in itself raises very difficult and complicated legal questions which I touched upon at my appearance last week. 35 "You must first decide whether a particular suit is actually a suit against the man in his official capacity or whether it i[s] a suit against the Government officer in his individual capacity. If it is the latter, it is not in any sense a suit against the Government." Id., at 54. 36 Committee Counsel later asked the Department of Justice witness: 37 "Suppose in order to take care of a body of law which seems to say that when a government official does something wrong he is acting in his individual capacity, we added the following language—'acting in his official capacity or under color of legal authority'?" Id., at 61. 38 Mr. MacGuineas' response, which must now be recognized as prophetic, was that such language might later be misinterpreted as covering a damages action against a person holding Government office. This, he said, would raise "serious policy questions" by allowing a Government official to be sued in the plaintiff's home district while a private defendant in the same kind of action could be sued only in the district of his residence. The Chairman, Mr. Forrester, and the ranking senior Committee Member, Mr. Poff, both stated that they shared the same concern. Id., at 62-63. 39 Judge Albert Maris, then Chairman of the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, testified that such an "injustice" to the Government officer could be avoided only by requiring a damages suit to be brought in the district of his residence or where the cause of action arose. "That," said Judge Maris, "is the normal procedure in the law. That is what ordinarily happens in the ordinary law suit." Id., at 86. Congressman Dowdy, one of the four Members present, then said: 40 "Speaking to the point you were talking about, I don't understand that we have in consideration suits for money damages. That would be maybe where a person is being sued as an individual." Id., at 87. 41 When Judge Maris stated his view that cases involving money damages would not be involved, Mr. Dowdy agreed: "They would not be covered by this [proposed legislation]." Ibid. 42 Finally, near the conclusion of the hearing, the bill's author, Mr. Budge, stated: 43 "We always get off into these slander type actions which is not what I am seeking at all. When Mr. MacGuineas stated here this morning that he was not sure of the purpose of the legislation, I think that is perhaps true, because I have no intention of bringing [within this bill] tort actions against individual government employees. All I am seeking to do is to have the review of their official actions take place in the United States District Court where the determination was made." Id., at 102 (emphasis added). 44 Following the hearings, the Subcommittee redrafted H.R. 10089. The revised version, H.R. 12622, 86th Cong., 2d Sess. (1960), among other things, added the language "or under color of legal authority" to the phrase "acting in his official capacity." Far from being intended as the master key which would unlock the door to nationwide venue for money damages actions brought against an official as an individual, this language was specifically intended only to alleviate the hardships caused by a relatively narrow but nagging problem, as the Committee Report made clear: 45 "By including the officer or employee, both in his official capacity and acting under color of legal authority, the committee intends to make the proposed section 1391(e) applicable not only to those cases where an action may be brought against an officer or employee in his official capacity. It intends to include also those cases where the action is nominally brought against the officer in his individual capacity even though he was acting within the apparent scope of his authority and not as a private citizen. Such actions are also in essence against the United States but are brought against the officer or employee as an individual only to circumvent what remains of the doctrine of sovereign immunity. The considerations of policy which demand that an action against an official may be brought locally rather than in the District of Columbia require similar venue provisions where the action is based upon the fiction that the officer is acting as an individual. There is no intention, however, to alter the venue requirements of Federal law insofar as suits resulting from the official's private actions are concerned." H.R.Rep.No. 1936, 86th Cong., 2d Sess., 3-4 (1960) (emphasis added). 46 The Committee's statement of the legislation's purpose also sheds considerable light on the congressional intent: 47 "The purpose of this bill is to make it possible to bring actions against Government officials and agencies in U. S. district courts outside the District of Columbia, which, because of certain existing limitations on jurisdiction and venue, may now be brought only in the U. S. District Court for the District of Columbia." Id., at 1 (emphasis added). 48 In context, this clearly confines the intended thrust of § 1391(e) to mandamus-type actions. See supra, at 533-534. The Report continues: 49 "Section 2 [§ 1391(e)] is the venue section of the bill. Its purpose is similar to that of section 1. It is designed to permit an action which is essentially against the United States to be brought locally rather than requiring that it be brought in the District of Columbia simply because Washington is the official residence of the officer or agency sued." H.R.Rep.No. 1936, supra, at 2 (emphasis added).8 50 Although H.R. 12622 passed the House in 1960, the Senate adjourned without acting on it. See H.R.Rep.No. 536, 87th Cong., 1st Sess., 1 (1961). The same bill was reintroduced in the next Congress as H.R. 1960, 87th Cong., 1st Sess. (1961). The Committee Report was republished as H.R.Rep.No. 536, 87th Cong., 1st Sess. (1961), and the bill was referred to the Senate. 51 The Senate Judiciary Committee also solicited comments on the bill from the Department of Justice. The Department suggested, inter alia, that it would be prudent to effect the venue reform by amending the Administrative Procedure Act so that "suits for money judgments against officers" would be "unquestionably eliminate[d]." See Letter from Deputy Attorney General White to Senator Eastland (Feb. 28, 1962), reprinted in S.Rep.No. 1992, 87th Cong., 2d Sess., 6 (1962), U.S.Code Cong. & Admin.News 1962, p. 2784. Although the Senate Committee in its Report commented on other suggestions proffered by the Justice Department, in this instance it made no response at all.9 Respondents and the Courts of Appeals rely on this failure to respond as indicating an intention that the venue provisions were to apply to actions for money damages brought against a federal official in his individual capacity. 52 We are not persuaded by this negative inference. Several passages affirmatively state the limited nature of the bill: The Senate Committee's statement of the bill's purpose is exactly the same as that found in the House Report. Compare S.Rep.No. 1992, supra, at 2, with H.R.Rep.No. 536, supra, at 1. The Committee also states that "[t]he bill, as amended, is intended to facilitate review by the Federal courts of administrative actions," S.Rep.No. 1992, supra, at 2, U.S.Code Cong. & Admin.News 1962, at 2785 (emphasis added), which does not afford a basis for reading the language of the statute to include money damages actions against individuals. And the following comment as to the bill's venue provisions appears in the Report: 53 "The committee is of the view that the current state of the law respecting venue in actions against Government officials is contrary to the sound and equitable administration of justice. Frequently, the administrative determinations involved are made not in Washington but in the field. In either event, these are actions which are in essence against the United States. The Government official is defended by the Department of Justice whether the action is brought in the District of Columbia or in any other district. U.S. attorneys are present in every judicial district. Requiring the Government to defend Government officials and agencies in places other than Washington would not appear to be a burdensome imposition." S.Rep.No. 1992, supra, at 3, U.S.Code Cong. & Admin.News 1962, at 2786 (emphasis added). 54 Here again is confirmation that there was no thought to expand the venue provisions except as to actions "in essence against the United States," since the Government is not "required" to defend personal actions in which a Government employee is a defendant. 55 What emerges is that the bill's author, the Committees, and the Congress intended nothing more than to provide nationwide venue for the convenience of individual plaintiffs in actions which are nominally against an individual officer but are in reality against the Government. A suit for money damages which must be paid out of the pocket of the private individual who happens to be—or formerly was—employed by the Federal Government plainly is not one "essentially against the United States," and thus is not encompassed by the venue provisions of § 1391(e).10 56 This is not the first time an overbroad interpretation of § 1391(e) has been rejected by this Court. In Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971), the question was whether in a habeas corpus proceeding "any custodian, or one in the chain of command, as well as the person detained, must be in the territorial jurisdiction of the District Court." Id., at 489, 91 S.Ct., at 997. While recognizing that habeas corpus is "a civil action," we noted that reference to § 1391(e) did not provide the answer. In the opinion for the Court, Mr. Justice Douglas stated: 57 "Although by 28 U.S.C. § 1391(e) . . . Congress has provided for nationwide service of process in a 'civil action in which each defendant is an officer or employee of the United States', the legislative history of that section is barren of any indication that Congress extended habeas corpus jurisdiction. That section was enacted to broaden the venue of civil actions which could previously have been brought only in the District of Columbia. See H.R.Rep.No. 536, 87th Cong., 1st Sess., 1; S.Rep.No. 1992, 87th Cong., 2d Sess., 2." 401 U.S., at 490, n. 4, 91 S.Ct., at 997, n. 4. (Emphasis added.) 58 As we have noted, the "civil actions which could previously have been brought only in the District of Columbia" were suits for mandamus, not actions for money damages. See supra, at 533-534. The clear purport of our statement in Schlanger is that Congress did not intend the phrase "civil action" to be given the sweeping definition argued for it in that case, and that the Court was required to turn to the legislative history to determine which "civil actions" § 1391(e) governed. IV 59 The conclusion derived from the legislative history that § 1391(e) does not cover the type of suits here at issue is buttressed by consideration of the consequences of the broad interpretation urged upon us by respondents. The conditions and venue provisions under which officers of the United States may be sued while in office or after leaving office, have serious implications for defendants as well as for those seeking relief. An officer of the Government while so employed may have numerous mandamus-type suits naming him or her as a party. Without doubt, under § 1391(e), venue lies in every one of the 95 federal districts, and suits may be pending in a dozen or several dozen at any one time. Even though the burden of defending multiple suits while in office may be onerous, the United States Attorney in each of the districts and the Department of Justice carry that burden. In a mandamus suit only rarely would the officer himself be obliged to travel to the district in which the case was heard; if so obliged, the travel would be at Government expense. When an official leaves office, his personal involvement in a mandamus suit effectively ends and his successor carries on. No personal cost or inconvenience is incurred, either while in office or later. It was with this understanding that Congress sought to ameliorate the inconvenience and expense to private plaintiffs seeking relief from the action or inaction of their Government. H.R.Rep.No. 536, at 3; S.Rep.No. 1992, at 3. 60 Suits for money damages for which an individual officeholder may be found personally liable are quite different. If § 1391(e) were construed to govern actions for money damages against federal officers individually, suits could be brought against these federal officers while in Government service—and could be pressed even after the official has left federal service—in any one of the 95 federal districts covering the 50 states and other areas within federal jurisdiction. This would place federal officers, solely by reason of their Government service, in a very different posture in personal damages suits from that of all other persons, since under 28 U.S.C. § 1391(b), suits against private persons for money damages must be brought "in the judicial district where all defendants reside, or in which the claim arose."11 61 There is, however, no indication that a Congress concerned with "the sound and equitable administration of justice," H.R.Rep.No. 536, at 3; S.Rep.No. 1992, at 3; U.S.Code Cong. & Admin.News 1962, at 2785, intended to impose on those serving their Government the burden of defending personal damages actions in a variety of distant districts after leaving office. Absent a clear indication that Congress intended such a sweeping effect, we will not infer such a purpose nor will we interpret a statute to effect that result. "We think these laws ought to be construed in the spirit in which they were made—that is, as founded in justice and should not be strained by technical constructions to reach cases which Congress evidently could not have contemplated, without departing from the principle upon which they were legislating, and going far beyond the object they intended to accomplish." Brown v. Duchesne, 19 How., at 197, 15 L.Ed. 595. 62 The judgments of the Courts of Appeals in No. 77-1546 and No. 78-303 are reversed, and the cases are remanded for further proceedings consistent with this opinion. 63 Reversed and remanded. 64 Mr. Justice WHITE took no part in the consideration or decision of these cases. 65 Mr. Justice MARSHALL took no part in the decision of these cases. 66 Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, dissenting. 67 The Court today holds that in a suit against a federal officer for allegedly wrongful actions under color of legal authority, the venue provisions of § 2 of the Mandamus and Venue Act of 1962, 28 U.S.C. § 1391(e), are applicable only if the officer is simply a nominal defendant, and the plaintiff's real grievance is against the Government. I disagree. It is my view that § 1391(e) means what it says, and that it thus applies as well to a suit for damages against a federal officer for his own wrongdoing. 68 * When Congress enacted § 1391(e) in 1962, this Court had recognized two types of suits against federal officers acting under color of legal authority.1 See Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628. The first of these two types of suits was based on a legal fiction designed to circumvent the doctrine of sovereign immunity. This fiction enabled an aggrieved party to obtain equitable relief in a case nominally directed against a federal officer if the officer had acted either unconstitutionally or in excess of his statutory authority. The theory underlying the fiction was that the relief sought was against the officer in his individual capacity, rather than against the Government. Id., at 689-690, 69 S.Ct. at 1461-1462. But, since any sovereign can act only through its agents, the reality was that the relief sought was in fact against the Government itself. The second type of suit, by contrast, was a direct action against the federal officer in his individual capacity for actions taken under color of legal authority. Id., at 687, 69 S.Ct. at 1460. Such a suit typically sought to assess personal monetary liability against the officer. 69 The issue here is whether the venue and service of process provisions of § 1391(e) were intended to apply to both of these kinds of suits. Section 1391(e) provides in relevant part: 70 "A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority . . ., may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. . . . 71 "The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer . . . as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought." 72 Since either of the two types of suits described above is properly characterized as "[a] civil action in which a defendant is an officer or employee of the United States . . . acting . . . under color of legal authority," it is quite clear that they both fall within the plain meaning of § 1391(e).2 Thus, by its own terms, § 1391(e) unambiguously extends to the second type of suit against a federal officer, that is, one in which, as here, money damages are sought directly from the federal officer himself. II 73 Relying on legislative history and policy considerations, the Court turns its back on the words of the statute and holds that it does not cover a suit against a federal officer for money damages. The legislative history, according to the Court, indicates that the general purpose of Congress in enacting the Mandamus and Venue Act of 1962 (Act) was to remove then existing jurisdictional and venue obstacles to suits against federal officers for mandamus-type relief outside the District of Columbia. The legislative history further indicates, in the Court's view, that the specific, and exclusive, concern of Congress in adding to § 1391(e) the phrase at issue here, "acting . . . under color of legal authority," was to ensure that the provision would govern suits against federal officers for equitable relief. Thus the Court concludes that the proper construction of the phrase "acting . . . under color of legal authority" is coextensive with the sole concern to which it was purportedly addressed. This construction is said to find further support in the policies underlying the Act.3 74 The Court thus purports to rely on the familiar rule that " 'in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute . . . and the objects and policy of the law.' " Ante, at 535, quoting Brown v. Duchesne, 19 How. 183, 194, 15 L.Ed. 595. See Steelworkers v. Weber, 443 U.S. 193, 201-202, 99 S.Ct. 2721, 2726-2727, 61 L.Ed.2d 480. This reliance is misplaced, however, since neither the legislative history nor public policy is inconsistent with the plain meaning of § 1391(e). A. 75 The forerunner of the Act was introduced as H.R.10089, 86th Cong., 2d Sess. (1960). That bill provided: 76 "A civil action in which each defendant is an officer of the United States in his official capacity, a person acting under him, or an agency of the United States, may be brought in any judicial district where a plaintiff in the action resides." (Emphasis added.) Following hearings and the submission of written comments on H.R.10089 to a House Subcommittee of the Committee on the Judiciary, a new bill was introduced that parallels closely the current language of the Act. The new bill, H.R.12622, 86th Cong., 2d Sess. (1960), contained two sections; the first vested all district courts with jurisdiction to hear suits seeking mandamus-type relief;4 the second broadened the venue alternatives for a suit against a federal officer "acting in his official capacity or under color of legal authority." (Emphasis added.) This bill passed the House in 1960, but the Senate adjourned without acting on it. The same bill was then reintroduced in the next Congress, H.R.1960, 87th Cong., 1st Sess. (1961), and with only minor amendments, was enacted by both the House and the Senate. 77 The question here is why Congress expanded the ambit of the second section of the Act, now § 1391(e), to include not only a suit against a federal officer "acting in his official capacity," but also a suit against a federal officer "acting . . . under color of legal authority." The Court says that the legislative history reveals that the phrase "acting . . . under color of legal authority" was added to § 1391(e) for the sole purpose of including within its coverage suits against federal officers for equitable relief. This view is said to find support in the positions announced by members of the House Subcommittee during the hearings on H.R.10089, and in the Committee Reports that accompanied the subsequent versions of the bill. 78 I would have to agree that a principal purpose of adding the phrase "acting . . . under color of legal authority" to § 1391(e) was to ensure that the venue provisions would apply to suits against federal officers for equitable relief. At the Subcommittee Hearings on H.R.10089, the proponent of the bill, Representative Budge, explained the basic problem to which it was addressed—that, in light of then existing venue and jurisdictional obstacles, "there is no opportunity for a judicial review of the action of any decision that is made by a Federal officer in charge out there [in the field], no matter how arbitrary or capricious, because it is too expensive to come back here [to Washington, D.C.] to litigate it." Hearings on H.R.10089 before Subcommittee No. 4 of the House Committee on the Judiciary 86th Cong., 2d Sess., 19-20 (1960). 79 The record of the testimony at the Subcommittee hearings, however, reveals substantial confusion both as to the scope of the problem and the manner in which it During the hearings, a representative of the Justice Department observed that since the bill, as drafted, applied only to a suit against a federal officer "in his official capacity," there would remain unresolved the venue and jurisdictional problems in the context of a suit for equitable relief brought against a federal officer in his individual capacity to sidestep the problem of sovereign immunity. Id., at 32-33. In response, the Subcommittee's counsel proposed the addition of the language at issue here: "Suppose in order to take care of a body of law which seems to say that when a government official does something wrong he is acting in his individual capacity, we added the following language—'acting in his official capacity or under color of legal authority.' " Id., at 61 (emphasis added). That phrase was then incorporated in the redrafted bill, H.R.12622, as well as subsequent bills. The Committee Reports accompanying those bills confirm that Congress intended § 1391(e) to govern suits against federal officers for equitable relief. 80 Although a principal purpose of adding the phrase "acting . . . under color of legal authority" to § 1391(e) thus undoubtedly was to ensure that the venue provision would apply to suits against federal officers for equitable relief, it is not at all clear from the legislative history that Congress sought only to include such suits within the broadened ambit of the provision. Whatever may have been the intent of the Subcommittee members who conducted the hearings on the original bill, the Committee Reports accompanying subsequent bills—all of which included the phrase "acting . . . under color of legal authority"—indicated an intent to reach suits against federal officers not only for equitable relief, but also for money damages. In describing the scope of the problem addressed by the Act, the Committee Reports indicated that "[t]he venue problem also arises in an action against a Government official seeking damages from him for actions which are claimed to be without legal authority but which were taken by the official in the course of performing his duty." H.R.Rep.No.1936, 86th Cong., 2d Sess. 3 (1960); H.R.Rep.No.536, 87th Cong., 1st Sess., 3 (1961); S.Rep.No.1992, 87th Cong., 2nd Sess., 3 (1961), U.S.Code Cong. & Admin.News 1962, at 2786 (emphasis added). 81 It is also significant that at least one of these Committee Reports, that of the Senate Judiciary Committee, was issued after the then Deputy Attorney General had recommended that the venue reform be tied in directly to the Administrative Procedure Act. Letter from Deputy Attorney General White to Senator Eastland (Feb. 28, 1962), reprinted in S.Rep.No.1992, supra, at 6. "This," he observed, "[would] unquestionably eliminat[e] suits for money judgments against officers." Ibid, U.S.Code Cong. & Admin.News 1962, at 2789. Although the Committee acted upon other suggestions in that letter, it took no steps whatsoever to narrow the ambit of § 1391(e) to exclude suits for money damages. Rather, as stated above, the Committee Report indicated that the venue problem to which the bill was addressed applied to such suits. B 82 It is also instructive that shortly after the Act was signed into law, then Deputy Attorney General Katzenbach circulated a memorandum to all United States Attorneys to assist them in defending suits brought under the newly enacted legislation. In that memorandum, he noted: 83 "The venue provision [§ 1391(e)] is applicable to suits against Government officials and agencies for injunctions and damages as well as suits for mandatory relief. . . . As an example, suits for damages for alleged libel or slander by Government officials (which the Department defends on the ground that statements made by a Government official within the scope of his authority are absolutely privileged . . .) fall within the venue provision of this statute." 84 It is thus clear that the Justice Department regarded § 1391(e) as applicable to suits against federal officers for money damages for actions taken under color of legal authority. 85 The significance of this memorandum is twofold. First, it represents a contemporaneous interpretation of § 1391(e) that is wholly at odds with that adopted by the Court. Second, it indicates that the Justice Department has long assumed a special responsibility for representing federal officers sued for money damages for actions taken under color of legal authority. This longstanding responsibility is carried forth in current regulations. See 28 CFR §§ 50.15, 50.16 (1979). 86 The fact that the Justice Department, in most circumstances, will provide such representation substantially undercuts the Court's policy argument that to construe § 1391(e) to govern suits for money damages would undermine the "sound and equitable administration of justice," see H.R.Rep.No.536, supra, at 3; S.Rep.No.1992, supra, at 3, U.S.Code Cong. & Admin.News 1962, at 2786, by "plac[ing] federal officers, solely by reason of their Government service, in a very different posture in personal damages suits from that of all other persons, since under 28 U.S.C. § 1391(b), suits against private persons for money damages must be brought 'in the judicial district where all the defendants reside, or in which the claim arose.' " Ante, at 785. The Court's argument overlooks the fact that since the Government is willing to provide representation in a suit against a federal officer for money damages, the federal officer is relieved of the greatest burden involved in defending himself. III 87 The petitioners also argue that principles of due process militate against construing § 1391(e) to govern suits against federal officers for money damages. This argument turns on the fact that § 1391(e) provides not only for expanded venue, but also for nationwide service of process. It is the petitioners' position that a serious due process problem arises when the provisions of § 1391(e) are taken to mean what they say, so as to permit a federal district court to exercise personal jurisdiction over a federal officer who lacks sufficient "minimum contacts" with the State or district in which the federal court sits.5 88 The petitioners concede that previous cases in this area have involved the Fourteenth Amendment requirement that a state court may acquire personal jurisdiction only if there exist "minimum contacts" between the defendant and the forum State. Reasoning by analogy, however, the petitioners argue that traditional notions of fair play and substantial justice inherent in the Due Process Clause of the Fifth Amendment similarly limit the exercise of congressional power to provide for nationwide in personam jurisdiction. 89 The short answer to this argument is that due process requires only certain minimum contacts between the defendant and the sovereign that has created the court. See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683; International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. The issue is not whether it is unfair to require a defendant to assume the burden of litigating in an inconvenient forum, but rather whether the court of a particular sovereign has power to exercise personal jurisdiction over a named defendant. The cases before us involve suits against residents of the United States in the courts of the United States. No due process problem exists. 90 This is not to say that a federal officer in a suit for money damages is without recourse in the event he is sued in an inconvenient place. A federal district court is vested with broad authority "[f]or the convenience of parties and witnesses, in the interest of justice, [to] . . . transfer any civil action to any other district . . . where it might have been brought." 28 U.S.C. § 1404(a). It is not unreasonable to expect that district courts would look sympathetically upon a motion for a change of venue in any case where a federal officer could show that he would be substantially prejudiced if the suit were not transferred to a more convenient forum. 91 For the reasons stated, I think that § 1391(e) means exactly what it says, and that its provisions present no constitutional problem whatever. Accordingly, I would affirm the judgments in both of these cases. 1 Goodwin is not a party in the case before this Court. 2 Goodwin joined petitioners in making the transfer request. He also moved for dismissal on grounds of prosecutorial immunity. This motion was denied. See Briggs v. Goodwin, 384 F.Supp. 1228 (DC 1974), aff'd, 186 U.S.App.D.C. 179, 569 F.2d 10 (1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). 3 See Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, Final Report, S.Rep.No. 94-755, Book 3, pp. 559-677 (1976). 4 The court concluded that because 28 U.S.C. § 1391(e) was drafted in the present tense, Congress did not mean it to apply to former officials. Although respondents sought certiorari on this question, we declined review. 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979). 5 "§ 1361. Action to compel an officer of the United States to perform his duty "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 6 Congress' use of the language "under color of legal authority" is explained in the House Committee Report as an effort to circumvent the sovereign immunity doctrine. See infra, at 538-539. 7 A certified copy of these unpublished hearings has been lodged with the Clerk of this Court. 8 Respondents' argument that § 1391(e) should apply to personal damages actions is based on an isolated passage in the Committee Report: "The venue problem also arises in an action against a Government official seeking damages from him for actions which are claimed to be without legal authority but which were taken by the official in the course of performing his duty." H.R.Rep.No. 1936, at 3. In the face of the consistently expressed intent of the Committee to include only actions essentially against the Government, we decline to treat this one cryptic sentence as dispositive of the legislative intent. See Blackburn v. Goodwin, 608 F.2d 919 (CA2 1979). 9 The only arguable reference is a passage taken verbatim from the House Report which mentions that the venue problem also arises in suits against officials for damages for acts taken in the course of performing official duties. See S.Rep.No. 1992, at 3. Inasmuch as this passage, like much of the Senate Report, is but a recitation of language used earlier in the House Report, see n. 8, supra, it obviously was not drafted in response to the Justice Department's letter. 10 In deciding whether an action is in reality one against the Government, the identity of the named parties defendant is not controlling; the dispositive inquiry is "who will pay the judgment?" See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). Here, it is against individuals and not against the Government that a money judgment is sought. 11 Under this provision the case against petitioner Stafford could have been brought only in the Northern District of Florida where the alleged claim arose. As to petitioner Colby, the proper venue would have been the Eastern District of New York where the alleged claim arose, or perhaps the Eastern District of Virginia, where some acts may have occurred at the headquarters of the CIA. 1 For purposes of brevity, I hereafter refer to "suits against federal officers acting under color of legal authority" simply as "suits against federal officers." 2 The Court argues that since § 1391(e) is written in the present tense ("[a] civil action in which a defendant is an officer or employee of the United States . . . acting in his official capacity or under color of legal authority" (emphasis added)), the phrase "acting . . . under color of legal authority" is properly construed as applying only to a nominal suit against a federal officer for equitable relief. Such a suit, the Court notes, is necessarily brought against a defendant who is presently serving as a federal officer. Ante, at 535-536. This argument falls short of the mark, however, for many suits against federal officers for money damages, such as those at issue here, are brought against the officers while they are still in Government service. 3 The Court also finds support for its construction of § 1391(e) in our holding in Schlanger v. Seamans, 401 U.S. 487, 490, n. 4, 91 S.Ct. 995, 997, 28 L.Ed.2d 251 that § 1391(e) does not apply to habeas corpus actions. This reliance is misplaced, because the Schlanger decision turned on the sui generis nature of habeas corpus actions which, though "technically 'civil,' . . . [are] not automatically subject to all the rules governing ordinary civil actions." Ibid. 4 This section of the bill, with minor modifications, was later enacted as § 1 of the Act, 28 U.S.C. § 1361, which provides: "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 5 The petitioners also argue, on statutory grounds, that § 1391(e) does not confer personal jurisdiction. It is the petitioners' position that § 1391(e) was designed only to govern venue and service of process, not to confer personal jurisdiction. The flaw in this argument is that, as a general rule, service of process is the means by which a court obtains personal jurisdiction over a defendant, and in the cases before us the petitioners have failed to demonstrate that there was any defect in the means by which service of process was effected. It cannot seriously be argued that § 1391(e) does not authorize extraterritorial service of process, for it provides that in civil actions governed by § 1391(e) "the delivery of the summons and complaint to the officer or agency as required by the [Federal Rules of Civil Procedure] may be made by certified mail beyond the territorial limits of the district in which the action is brought." The legislative history, moreover, confirms that Congress intended extraterritorial service of process for all cases governed by § 1391(e). See H.R.Rep.No.536, 87th Cong., 1st Sess., 4 (1961).

89

63 L.Ed.2d 141 100 S.Ct. 874 444 U.S. 707 UNITED STATES et al., Petitioners,v.Harvey F. EUGE. No. 78-1453. Argued Nov. 26, 1979. Decided Feb. 20, 1980. Rehearing Denied April 21, 1980. See 446 U.S. 913, 100 S.Ct. 1845. Syllabus Section 7602 of the Internal Revenue Code of 1954 authorizes the Internal Revenue Service to summon individuals to "appear," and "to produce such books, papers, records, or other data, and to give such testimony," as may be relevant to a tax investigation. During an investigation of respondent's income tax liability, in an effort to determine whether deposits in certain bank accounts not registered in respondent's name represented income attributable to him, an IRS agent issued a summons requiring respondent to appear and execute handwriting exemplars of the various signatures appearing on the bank signature cards. When respondent refused to comply with the summons, the United States brought suit to enforce it. The District Court held that the summons should be enforced, but the Court of Appeals reversed, holding that the summons authority under § 7602 does not authorize the IRS to compel the execution of handwriting exemplars. Held : The IRS is empowered to compel handwriting exemplars under its summons authority conferred by § 7602. Pp. 710-719. (a) While § 7602's language may not be explicit in authorizing handwriting exemplars, the duty to appear and give testimony has traditionally encompassed a duty to provide some forms of nontestimonial, physical evidence, including handwriting exemplars. By imposing an obligation to produce documents as well as to appear and give testimony, § 7602's language suggests an intention to codify a broad testimonial obligation, including an obligation to provide some physical evidence relevant and material to a tax investigation. From this authority to compel the production of some physical evidence, it can properly be concluded that the authority extends to the execution of handwriting exemplars, one variety of physical evidence. Pp. 712-714. (b) This Court has consistently construed congressional intent to require that if the claimed summons authority is necessary for the effective performance of congressionally imposed responsibilities to enforce the Internal Revenue Code, that authority should be upheld absent express statutory prohibition or substantial countervailing congressional policies. Pp. 714-716. (c) The authority claimed here is necessary for the effective exercise of the IRS's enforcement responsibilities. Handwriting exemplars are often an important evidentiary component in establishing tax liability, the use of such exemplars being an effective method for determining whether a particular name is an alias of a taxpayer. Pp. 716-717. (d) Moreover, the authority claimed here is entirely consistent with the statutory language and is not in derogation of any countervailing policies or any constitutional rights, compulsion of handwriting exemplars being neither a search or seizure subject to Fourth Amendment protections nor testimonial evidence protected by the Fifth Amendment privilege against self-incrimination. Pp. 717-718. 8 Cir., 587 F.2d 25, reversed. Stuart A. Smith, Washington, D. C., for petitioners. James W. Erwin, St. Louis, Mo., for respondent. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 The United States sued in the District Court seeking enforcement of an Internal Revenue Service summons requiring respondent to appear and provide handwriting exemplars. Enforcement was denied by the Court of Appeals for the Eighth Circuit, 587 F.2d 25 (1978) (en banc), and we granted certiorari.1 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1044. We now hold that Congress has empowered the IRS to compel handwriting exemplars under its summons authority conferred by 26 U.S.C. § 7602. 2 * The facts are not in dispute. In October 1977, an agent in the Intelligence Division of the Internal Revenue Service was assigned to investigate respondent's income tax liability for the years 1973 through 1976. Respondent had not filed any tax returns for those years. The Service sought to employ the "bank deposits method" of reconstructing respondent's income for those years, as a means of calculating his tax liability. Under this method of proof, the sums deposited in the taxpayer's bank accounts are scrutinized to determine whether they represent taxable income. 3 During the course of the investigation, the agent found only two bank accounts registered in respondent's name. Twenty other bank accounts were discovered, however, which the agent had reason to believe were being maintained by respondent under aliases to conceal taxable income. The statements for these accounts were sent to post office boxes held in respondent's name; the signature cards for the accounts listed addresses of properties owned by respondent; and the agent had documented frequent transfers of funds between the accounts. 4 In an effort to determine whether the sums deposited in these accounts represented income attributable to respondent, the agent issued a summons on October 7, 1977, requiring respondent to appear and execute handwriting exemplars of the various signatures appearing on the bank signature cards. Respondent declined to comply with the summons. 5 The United States commenced this action under 26 U.S.C. § 7604(a). The District Court held that the summons should be enforced, ordering respondent to provide 10 handwriting exemplars of 8 different signatures. The Court of Appeals reversed, ruling that the summons authority vested in the Internal Revenue Service under 26 U.S.C. § 7602 does not authorize the IRS to compel the execution of handwriting exemplars.2 II 6 The structure and history of the statutory authority of the Internal Revenue Service to summon witnesses to produce evidence necessary for tax investigations has been repeatedly reviewed by this Court in recent years. See Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964); United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964); Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971); United States v. Bisceglia, 420 U.S. 141, 95 S.Ct. 915, 43 L.Ed.2d 88 (1975); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978). Under § 7602, the Secretary of the Treasury, and therefore the IRS as his designate,3 is authorized to summon individuals to "appear before the Secretary . . . and to produce such books, papers, records, or other data, and to give testimony, under oath, as may be relevant or material to such inquiry . . . ."4 The question presented here is whether this power to compel a witness to "appear," to produce "other data," and to "give such testimony," includes the power to compel the execution of handwriting exemplars. We conclude that it does, for several reasons. While the language may not be explicit in its authorization of handwriting exemplars, the duty to appear and give testimony, a duty imposed by § 7602, has traditionally encompassed a duty to provide some forms of nontestimonial, physical evidence, including handwriting exemplars. Further this Court has consistently construed congressional intent to require that if the summons authority claimed is necessary for the effective performance of congressionally imposed responsibilities to enforce the tax Code, that authority should be upheld absent express statutory prohibition or substantial countervailing policies. The authority claimed here is necessary for the effective exercise of the Service's enforcement responsibilities; it is entirely consistent with the statutory language; and it is not in derogation of any constitutional rights or countervailing policies enunciated by Congress. 7 * Through § 7602, Congress has imposed a duty on persons possessing information "relevant or material" to an investigation of federal tax liability to produce that information at the request of the Secretary or his delegate. That duty to provide relevant information expressly obligates the person summoned to produce documentary evidence and to "appear" and "give testimony." Imposition of such an evidentiary obligation is, of course, not a novel innovation attributable to § 7602. The common law has been the source of a comparable evidentiary obligation for centuries. In determining the scope of the obligation Congress intended to impose by use of this language, we have previously analogized, as an interpretive guide, to the common-law duties attaching to the issuance of a testimonial summons. See United States v. Bisceglia, supra, 420 U.S., at 147-148, 95 S.Ct., at 919; United States v. Powell, supra, 379 U.S., at 57, 85 S.Ct., at 254. Congress, through legislation, may expand or contract the duty imposed,5 but absent some contrary expression, there is a wealth of history helpful in defining the duties imposed by the issuance of a summons. 8 The scope of the "testimonial"6 or evidentiary duty imposed by common law or statute has traditionally been interpreted as an expansive duty limited principally by relevance and privilege. As this Court described the contours of the duty in United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950): "[P]ersons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to the public interest in the orderly operation of legislative and judicial machinery. . . . We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned." While the Court recognized that certain exemptions would be upheld, the "primary assumption" was that a summoned party must "give what testimony one is capable of giving" absent an exemption "grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth." Ibid. 9 One application of this broad duty to provide relevant evidence has been the recognition, since early times, of an obligation to provide certain forms of nontestimonial physical evidence.7 In Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (Holmes, J.), the Court found that the common-law evidentiary duty permitted the compulsion of various forms of physical evidence. In Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), this Court observed that traditionally witnesses could be compelled, in both state and federal courts, to submit to "fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), handwriting was held, "like the . . . body itself" to be an "identifying physical characteristic," subject to production. In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power. See also United States v. Mullaney, 32 F. 370 (CC Mo.1887). 10 This broad duty to provide most relevant, nonprivileged evidence has not been considered to exist only in the common law. The Court has recognized that by statute "Congress may provide for the performance of this duty." Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932). By imposing an obligation to produce documents as well as to appear and give testimony, we believe the language of § 7602 suggests an intention to codify a broad testimonial obligation, including an obligation to provide some physical evidence relevant and material to a tax investigation, subject to the traditional privileges and limitations. This conclusion seems inherent in the imposition of an obligation to "appear," since an obligation to appear necessarily entails an obligation to display physical features to the summoning authority. Congress thereby authorized the Service to compel the production of some physical evidence, and it is certainly possible to conclude that this authorization extended to the execution of handwriting exemplars, one variety of relevant physical evidence. This construction of the language conforms with the historical notions of the testimonial duty attaching to the issuance of a summons.8 B 11 Congress certainly could have narrowed the common-law testimonial duty in enacting § 7602, and thus we do not rely solely on the common-law meaning of the statutory language. Section 7602 does not, by its terms, compel the production of handwriting exemplars, and therefore, a narrower interpretation of the duty imposed is not precluded by the actual language of the statute. A narrower interpretation is precluded, however, by the precedents of this Court construing that statute. As early as 1911, this Court established the benchmarks for interpreting the authority of the Internal Revenue Service to enforce tax obligations in holding that "the administration of the statute may well be taken to embrace all appropriate measures for its enforcement, [unless] there is . . . substantial reason for assigning to the phrase[s] . . . a narrower interpretation." United States v. Chamberlin, 219 U.S. 250, 269, 31 S.Ct. 155, 162, 55 L.Ed. 204. This precise mode of construction has consistently been applied by this Court in construing the breadth of the summons authority Congress intended to confer in § 7602. InUnited States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), the Court declined to construe § 7605(b), prohibiting the Secretary from conducting "unnecessary examination[s]," to require probable cause for the issuance of a § 7602 summons. The Court found that "[a]lthough a more stringent interpretation is possible, one which would require some showing of cause for suspecting fraud, we reject such an interpretation because it might seriously hamper the Commissioner in carrying out investigations he thinks warranted . . ." 379 U.S., at 53-54, 85 S.Ct., at 253. In Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), the Court refused to hold that the summons authority could not be used whenever there was a potential that the civil investigation might later lead to criminal prosecution. In construing the scope of the summons authority, the Court emphasized that it refused to draw the line in a manner that would "stultify enforcement of federal law." Id., at 536, 91 S.Ct., at 545. Finally, in United States v. Bisceglia, 420 U.S. 141, 95 S.Ct. 915, 43 L.Ed.2d 88 (1975), the Court upheld the Service's authority to issue a John Doe summons to a bank in order to discover the identity of an individual unknown to the Service. The Court reasoned that absent that construction, "no meaningful investigation of such events could be conducted" and thus "[s]ettled principles of statutory interpretation require that we avoid such a result absent unambiguous directions from Congress." Id., at 150, 95 S.Ct., at 921. There is thus a formidable line of precedent construing congressional intent to uphold the claimed enforcement authority of the Service if such authority is necessary for the effective enforcement of the revenue laws and is not undercut by contrary legislative purposes.9 12 Applying these principles, we conclude that Congress empowered the Service to seek, and obliged the witness to provide, handwriting exemplars relevant to the investigation. First, there is no question that handwriting exemplars will often be an important evidentiary component in establishing tax liability. The statutory framework, as reviewed in the numerous precedents recited supra, imposes on the Secretary of the Treasury, and the IRS as his designate, a broad duty to enforce the tax laws. 26 U.S.C. § 7601(a). Congress has legislated that the Secretary is "required to make the inquiries, determinations, and ASSESSMENTS OF ALL TAXES . . . IMPOSED BY THIS TITLE . . . ." 26 u.s.c. § 6201(a). Under § 6301 the Secretary "shall collect the taxes imposed by the internal revenue laws." In order to fulfill these duties, the Service will often need to determine whether a particular name is an alias of a taxpayer. One effective method for resolving that issue is through the use of handwriting exemplars.10 As we recognized in Bisceglia, the IRS does have a need for investigative devices which assist them in ascertaining the identity of tax evaders. In Bisceglia, we held, in language relevant to this case: 13 "[I]f criminal activity is afoot the persons involved may well have used aliases or taken other measures to cover their tracks. Thus, if the Internal Revenue Service is unable to issue a summons to determine the identity of such persons, the broad inquiry authorized by § 7601 will be frustrated in this class of cases. Settled principles of statutory interpretation require that we avoid such a result absent unambiguous directions from Congress." 420 U.S., at 150, 95 S.Ct., at 921. 14 There is certainly nothing in the statutory language,11 or in the legislative history,12 precluding the interpretation asserted by the Service. Nor is there any constitutional privilege of the taxpayer or other parties that is violated by this construction. Compulsion of handwriting exemplars is neither a search or seizure subject to Fourth Amendment protections, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), nor testimonial evidence protected by the Fifth Amendment privilege against self-incrimination. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The compulsion of handwriting exemplars has been the subject of far less protection than the compulsion of testimony and documents.13 Since Congress has explicitly established an obligation to provide the more protected forms of evidence, it would seem curious had it chosen not to impose an obligation to produce a form of evidence tradition has found it less important to protect.14 15 As we have emphasized in other cases dealing with § 7602 proceedings, the summoned party is entitled to challenge the issuance of the summons in an adversary proceeding in federal court prior to enforcement, and may assert appropriate defenses. See Bisceglia, 420 U.S., at 151, 95 S.Ct., at 921. The Service must also establish compliance with the good-faith requirements recognized by this Court, United States v. LaSalle National Bank, 437 U.S., at 318, 98 S.Ct., at 2368, and with the requirement of § 7605(b) that "[n]o taxpayer shall be subjected to unnecessary examination or investigations . . . ." These protections are quite sufficient to lead us to refuse to strain to imply additional ones from the neutral language Congress has used in § 7602. 16 We accordingly reverse the judgment of the Court of Appeals refusing enforcement of the summons. 17 Reversed. 18 Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice STEVENS join, dissenting. 19 The Internal Revenue Service, unlike common-law courts, has only such authority as Congress gives it. Cf. United States v. LaSalle National Bank, 437 U.S. 298, 307, 98 S.Ct. 2357, 2362, 57 L.Ed.2d 221 (1978) (validity of Service summonses depends on "whether they were among those authorized by Congress"). Congress has granted the Service authority to summon individuals "to appear before the Secretary . . . at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry . . . ." 26 U.S.C. § 7602. The Court holds today that this authority to compel "testimony" includes authority to compel the creation of handwriting exemplars.1 The Court, however, is unable to point to anything in the statutory language or legislative history that even suggests that the obligation to "give testimony" includes an obligation to create a handwriting exemplar. Indeed, the Court concedes, as it must, that a handwriting exemplar is a kind of nontestimonial physical evidence.2 Certainly, Congress has the power to authorize the Service to compel the creation of exemplars, but it has not chosen to do so in § 7602.3 Accordingly, I dissent. 20 Mr. Justice MARSHALL, dissenting. 21 In my view, the Fifth Amendment's privilege against compulsory self-incrimination prohibits the Government from requiring a person to provide handwriting exemplars. As I stated in my dissenting opinion in United States v. Mara, 410 U.S. 19, 33, 93 S.Ct. 774, 782, 35 L.Ed.2d 99 (1973), "I cannot accept the notion that the Government can compel a man to cooperate affirmatively in securing incriminating evidence when that evidence could not be obtained without the cooperation of the suspect." The Fifth Amendment privilege is rooted in "the basic stream of religious and political principle[,] . . . reflects the limits of the individual's attornment to the state," In re Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527 (1967), and embodies the "respect a government—state or federal—must accord to the dignity and integrity of its citizens," Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). I continue to believe, then, that "[i]t is only by prohibiting the Government from compelling an individual to cooperate affirmatively in securing incriminating evidence which could not be obtained without his active assistance, that 'the inviolability of the human personality' is assured." United States v. Mara, supra, 410 U.S., at 34-35, 93 S.Ct., at 782-83 (dissenting opinion) (quoting Miranda v. Arizona, supra, 384 U.S., at 460, 86 S.Ct., at 1620). 22 In order to avoid this constitutional problem, I agree with my Brother BRENNAN, see ante, p. 719, that 26 U.S.C. § 7602 should be construed not to permit Internal Revenue Service personnel to compel the production of handwriting exemplars. Accordingly, I dissent. 1 The Fourth Circuit reached a contrary result in United States v. Rosinsky, 547 F.2d 249 (1977). The Sixth Circuit decided this issue in accord with the Eighth Circuit. United States v. Brown, 536 F.2d 117 (1976). 2 The precise reasons for the court's holding are not clear. In the opinion, the court suggests that the statute does not authorize the IRS to compel a taxpayer to create evidence "out of thin air." 587 F.2d 25, 27, n. 3 (1978). The opinion also states, however, that it adopts the views expressed in the dissenting opinion in United States v. Campbell, 524 F.2d 604, 608 (CA8 1975). The principal reason forwarded in that decision for declining to construe § 7602 to authorize production of handwriting exemplars was the conclusion that such an order would constitute a seizure in violation of the Fourth Amendment. As discussed infra, neither rationale supports the conclusion reached by the Court of Appeals. 3 Responsibility for administration and enforcement of the revenue laws is vested in the Secretary of the Treasury. 26 U.S.C. § 7801(a). The Internal Revenue Service, however, is organized to carry out those responsibilities for the Secretary. See Donaldson v. United States, 400 U.S., at 534, 91 S.Ct., at 544; 35 Fed.Reg. 2417 et seq. (1970). For the purposes of this opinion, we refer to the authority and responsibilities of the Secretary and the Service interchangeably. 4 "Sec. 7602. Examination of Books and Witnesses. "For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized— "(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry; "(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and "(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry." 5 Legislative efforts to expand the scope of the testimonial obligation would, of course, be limited by the applicable constitutional guarantees. 6 The word "testimony" has been used loosely in this context to refer to physical and documentary, as well as oral, evidence. See 8 J. Wigmore, Evidence § 2194, p. 76 (McNaughton Rev. 1961). 7 Wigmore has identified the testimonial duty as including an obligation "to disclose for the purpose of justice all that is in his control which can serve the ascertainment of the truth, [and] this duty includes not only mental impressions preserved in his brain and the documents preserved in his hands, but also the corporal facts existing on his body." Ibid. 8 As indicated elsewhere, we do not suggest that the evidentiary obligation codified in § 7602 in all respects conforms to the common law. We rely on the analogy only as one interpretive guide. Supra, at 712. 9 Congressional intent to provide the Secretary with broad latitude to adopt enforcement techniques helpful in the performance of his tax collection and assessment responsibilities is expressed throughout the Code. In § 6302, for example, Congress has conferred the Secretary with discretion to devise methods of tax collection not specifically provided by statute: "Whether or not the method of collecting any tax imposed . . . is specifically provided for by this title, any such tax may . . . be collected by . . . other reasonable devices or methods as may be necessary or helpful in securing a complete and proper collection of the tax." 10 The United States suggests there are numerous uses of handwriting exemplars helpful to the Service. Not only are they useful in identifying the holder of a bank account, but they are also said to be useful for identifying persons who file multiple tax returns under false names claiming income tax refunds, purchase of money orders under false names, and forgery of joint returns to take advantage of lower joint rates. 11 Respondent argues that the language of § 7602 suggests that it only requires the production of documents already in existence. Since handwriting exemplars must be created by the witness, it is argued that the statute is inapplicable. First, we do not view the exhibition of physical characteristics to be equivalent to the creation of documentary evidence. See United States v. Dionisio, 410 U.S. 1, 6, 93 S.Ct. 764, 767, 35 L.Ed.2d 67 (1973). Further, the statute obviously contemplates the transformation of some evidence not formerly tangible, since it obligates the summoned individual to provide testimony. The testimony, of course, creates evidence not previously in existence. We see no difference between the nature of the evidence created when the witness is ordered to talk and that created when he is ordered to write. We express no opinion on the scope of the Service's authority to otherwise order the witness to generate previously nonexistent documentation under § 7602. The Service in fact has expressly disclaimed any intention to order the creation of documents. The Internal Revenue Manual § 4022.64(4) (CCH 1977) provides that an administrative summons "should not require the witness to do anything other than to appear on a given date to give testimony and to bring with him/her existing books, papers and records. A witness cannot be required to prepare or create documents." The section states, however, that "[t]he giving of exemplars, for example, handwriting exemplars, at an appearance pursuant to a summons is not 'creating a document.' " 12 The legislative history is simply unilluminating. The only conclusion which that history supports is that Congress did not intend to change the expanse of the § 7602 summons authority by its amendments in 1954. H.R.Rep.No.1337, 83d Cong., 2d Sess. (1954); S.Rep.No.1622, 83d Cong., 2d Sess. (1954), U.S.Code Cong. & Admin.News 1954, p. 4025. Since there are no pre-1954 interpretations of the statute precluding the issuance of handwriting exemplars, the legislative history sheds no light on the construction intended by Congress. 13 Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), demonstrates the minimal level of protection afforded handwriting exemplars, and the reasons why such protection is unnecessary. The Court found that production of the exemplars was not subject to the Fifth Amendment privilege, and that their creation did not represent a critical stage requiring counsel. The Court found only a "minimal risk that the absence of counsel might derogate from [a] right to a fair trial." Id., at 267, 87 S.Ct., at 1953. The Court concluded that "[i]f, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts." Ibid. 14 Palmer v. United States, 530 F.2d 787 (CA8 1976), similarly construed 28 U.S.C. § 1826(a). That statute authorizes the imposition of contempt on witnesses who refuse to "testify or provide other information." The statute does not explicitly authorize contempt sanctions for refusal to execute handwriting exemplars. The court found that the legislative history indicated that Congress had intended, through the use of the language employed in the statute, to "codify present civil contempt practice." Since that practice had included the power to punish a witness for refusing to create a handwriting exemplar, the court reasoned that Congress must have thought this phrasing adequate to cover production of handwriting samples. 1 The Court also places some reliance on the word "appear," which the Court suggests "necessarily entails an obligation to display physical features to the summoning authority." Ante, at 714. Plainly "appear" adds nothing to the authority of the Service. The word is used only to indicate that the person summoned must deliver the requested testimony or documents at the designated time and place. 2 The Court's use of the label "nontestimonial" is meaningful, for "[t]estimony properly means only such evidence as is delivered by a witness . . . , (either orally or in the form of affidavits or depositions." Black's Law Dictionary 1324 (5th ed. 1979). Testimony is a statement of knowledge or belief by a witness as opposed to the mere display of a physical characteristic. 3 Even if I thought the statute were ambiguous, I would reach the same result because I strongly believe that "until Congress has stated otherwise, our duty to protect the rights of the individual should hold sway over the interest in more effective law enforcement." Dalia v. United States, 441 U.S. 238, 263, 99 S.Ct. 1682, 1696, 60 L.Ed.2d 177 (1979) (STEVENS, J., dissenting).

01

445 U.S. 23 100 S.Ct. 895 63 L.Ed.2d 171 UNITED STATES, Appellant,v.Patricia Ilene CLARK, Guardian for Shawn D. Clark and Tricia D. Clark. No. 78-1513. Argued Oct. 31, 1979. Decided Feb. 26, 1980. Syllabus Held: Under the provisions of the Civil Service Retirement Act whereby a deceased federal employee's legitimate children under 18 years of age qualify for survivors' benefits but "recognized natural" children under 18 may recover only if they "lived with the employee . . . in a regular parent-child relationship," a recognized natural child is entitled to survivors' benefits when the child has lived with the deceased employee in a "regular parent-child relationship," regardless of whether the child was living with the employee at the time of his death. This construction of the statutory provisions is fair and reasonable in light of the language, purpose, and history of the enactment and avoids a serious constitutional question under the equal protection component of the Due Process Clause of the Fifth Amendment. Even if the "lived with" requirement is assumed to serve as a device to thwart fraudulent claims of dependency or parentage or to promote efficient administration by facilitating the prompt identification of eligible annuitants, to construe the provision as applying only to illegitimate children living with the employee at the time of death would raise serious equal protection problems that this Court must seek to avoid by adopting a saving statutory construction not at odds with fundamental legislative purposes. Pp. 26-34. 590 F.2d 343, 218 Ct.Cl. 705, affirmed. Harriet S. Shapiro, Washington, D. C., for appellant. Edward L. Merrigan, Washington, D. C., for appellee. Mr. Justice MARSHALL delivered the opinion of the Court. 1 This appeal presents the question whether illegitimate children of a federal civil service employee are entitled to survivors' benefits under the Civil Service Retirement Act when the children once lived with the employee in a familial relationship, but were not living with the employee at the time of his death. 2 * George Isaacson and the appellee Patricia Clark lived together from 1965 through 1971 without benefit of matrimony. They had two children, Shawn and Tricia Clark, born in 1968 and 1971, respectively, and the four lived together as a family. After the appellee and Isaacson separated, the appellee filed a state-court action in Montana seeking a determination of the paternity of the children. In June 1972, the Montana court issued a decree determining that Isaacson was the natural father of the children and ordering him to contribute to their support. Isaacson provided monthly support payments up to the time of his death in 1974. 3 At the time of death, Isaacson was a federal employee covered by the Civil Service Retirement Act, 5 U.S.C. § 8331 et seq. The Act provides that each surviving child of a deceased federal employee is entitled to a survivors' annuity. 5 U.S.C. § 8341(e)(1). All legitimate and adopted children under 18 years of age qualify for these benefits, but stepchildren or "recognized natural" children under 18 may recover only if they "lived with the employee . . . in a regular parent-child relationship." 5 U.S.C. § 8341(a)(3)(A). In September 1974, the Civil Service Commission's Bureau of Retirement, Insurance, and Occupational Health denied the appellee's application for such annuities for Shawn and Tricia. The Bureau held that 5 U.S.C. § 8341(a)(3)(A) bars recovery for otherwise qualified children born out of wedlock who, like Shawn and Tricia, were not living with the employee at the time of his death. The Commission's Board of Appeals and Review affirmed.1 4 The appellee then filed this action in the Court of Claims on behalf of her children. She argued that 5 U.S.C. § 8341(a)(3)(A) allows recovery where, as here, the recognized natural children had once lived with the employee in a parent-child relationship. Alternatively she contended that, if the Commission's interpretation of 5 U.S.C. § 8341(a)(3)(A) was correct, that provision violated the equal protection component of the Due Process Clause of the Fifth Amendment because it impermissibly discriminated against illegitimate children. 5 The Court of Claims granted the appellee's motion for summary judgment. 590 F.2d 343, 218 Ct.Cl. 705. Ignoring the statutory issue, the court granted relief on the authority of its earlier decision in Gentry v. United States, 546 F.2d 343, 212 Ct.Cl. 1 (1976), rehearing denied, 551 F.2d 852, 212 Ct.Cl. 27 (1977), which held that the "lived with" requirement of 5 U.S.C. § 8341(a)(3)(A) unconstitutionally discriminated against illegitimate children. We postponed consideration of our jurisdiction pending hearing on the merits, 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064 (1979), and now affirm on the statutory ground presented to but not addressed by the Court of Claims.2 II 6 The Civil Service Retirement Act provides survivors' annuities to all legitimate children, but grants the same benefits to children born out of wedlock only if they "lived with the employee . . . in a regular parent-child relationship." Such a classification based on illegitimacy is unconstitutional unless it bears "an evident and substantial relation to the particular . . . interests this statute is designed to serve." Lalli v. Lalli, 439 U.S. 259, 268, 99 S.Ct. 518, 524, 58 L.Ed.2d 503 (1978) (plurality opinion); see id., at 279, 99 S.Ct. at 530 (BRENNAN, J., dissenting). See also Trimble v. Gordon, 430 U.S. 762, 767, 97 S.Ct. 1459, 1463, 52 L.Ed.2d 31 (1977).3 The Government's asserted justification for the classification—that it is an administratively convenient means of identifying children who actually were deprived of support by the employee's death—is itself open to constitutional question, since the statute does not condition benefits to legitimate children on such a showing. 7 It is well settled that this Court will not pass on the constitutionality of an Act of Congress if a construction of the statute is fairly possible by which the question may be avoided. E. g., Califano v. Yamasaki, 442 U.S. 682, 693, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979); New York City Transit Authority v. Beazer, 440 U.S. 568, 582, and n. 22, 99 S.Ct. 1355, 1364, n. 22, 59 L.Ed.2d 587 (1979); Machinists v. Street, 367 U.S. 740, 749-750, 81 S.Ct. 1784, 1789-1790, 6 L.Ed.2d 1141 (1961); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944). Where both a constitutional issue and an issue of statutory construction are raised, we are not, of course, foreclosed from considering the statutory question merely because the lower court failed to address it. Califano v. Yamasaki, supra, at 693, 99 S.Ct., at 2553; University of California Regents v. Bakke, 438 U.S. 265, 328, 98 S.Ct. 2733, 2768, 57 L.Ed.2d 750 (1978) (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.); id., at 281, 98 S.Ct., at 2743 (opinion of POWELL, J.); id., at 411-412, 98 S.Ct., at 2810-2811 (opinion of STEVENS, J.). Accordingly, we turn to the statute to determine whether resolution of the constitutional question is necessary to the disposition of this case. 8 Shawn and Tricia Clark were denied annuities on the ground that they did not meet the statutory requirement that they "lived with the employee . . . in a regular parent-child relationship." The appellee contended that her children did meet the requirement because they had lived with the decedent as a family from their birth through 1971. If the appellee's construction of the statutory language is correct, the children are entitled to survivors' annuities and decision of the constitutional question is unnecessary. The Civil Service Commission, however, has construed the "lived with" language to require that the children be living with the employee at the time of the employee's death. 9 When the statutory language is considered on its face, the appellee's reading is at least as plausible as that of the Government. Shawn and Tricia had "lived with" their father, and we believe those words would not ordinarily imply a temporal limitation. Moreover, Congress has demonstrated in other social welfare legislation that it knows how to restrict the class of eligible beneficiaries to those living with an individual at a particular time.4 10 We can find nothing in the legislative history of the statute to indicate that appellee's construction of the statute is out of harmony with the congressional intent. The original enactment in 1948 made an annuity payable to "an unmarried child, including a dependent stepchild or an adopted child, under the age of eighteen years, or such unmarried child who because of physical or mental disability is incapable of self-support." Act of Feb. 28, 1948, § 11, 62 Stat. 55. The amount of the annuity depended on whether another parent survived. Although children born out of wedlock were not expressly included, the provision was seemingly broad enough to cover them.5 The Government argues that, in granting annuities to surviving children, Congress intended to provide funds to replace support lost by the wage earner's dependents. The Government views the statutory scheme as designed to pay benefits only to those children Congress thought most likely to have been dependent on the wage earner, and to take account of the likelihood of supplementary support from the other parent. We note, however, that only stepchildren were required to show dependency.6 11 In 1956, Congress amended the definition of an entitled child to include "an unmarried child, including (1) an adopted child, and (2) a stepchild or recognized natural child who received more than one-half his support from and lived with the . . . employee in a regular parent-child relationship." Act of July 31, 1956, Title IV, § 1(j), 70 Stat. 744.7 For the first time children born out of wedlock were explicitly included, but their eligibility was made subject both to the "lived with" requirement and to the dependency requirement originally applicable only to stepchildren. 12 The legislative history is devoid of any indication whether Congress intended that annuities could be recovered by all recognized natural children who had once lived with the employee in a familial relationship, or only by such children who were living with the employee at the time of death. Nor do the congressional materials illuminate the purpose of the "lived with" requirement. The Government defends the provision as a rational indicator of both dependency and parentage. An illegitimate child who lived with the natural parent, according to this view, is both more likely to have received support from the parent and more likely to be the true issue of that parent than is any illegitimate child who lived apart from the natural parent. It seems unlikely that Congress viewed the requirement as a means of ascertaining either dependency of parentage, however, since the statute also required the child to prove both that he had received more than one-half of his support from the deceased employee and that he was the employee's "recognized natural child." Those provisions speak directly to the concerns raised by the Government, and the additional requirement that the child must have lived with the parent would therefore be superfluous regardless of whether it mandated that the child must have lived with the parent at the time of the parent's death rather than at some other time. 13 The Government also urges that Congress intended the "lived with" requirement to serve as a means of thwarting fraudulent claims of dependency or parentage, and to promote efficient administration by facilitating the prompt identification of eligibile annuitants. It is evident from the facts of this case, however, that the classification is not narrowly tailored as a means of furthering either goal. As we recognized in Jimenez v. Weinberger, 417 U.S. 628, 636, 94 S.Ct. 2496, 2501, 41 L.Ed.2d 363 (1974), the prevention of fraud is a legitimate goal, but it does not necessarily follow "that the blanket and conclusive exclusion of [appellee's] subclass of illegitimates is reasonably related to the prevention of spurious claims." Thus, even if the "lived with" requirement is assumed to serve as a device to prevent fraud or to promote efficient administration, it raises serious equal protection problems that this Court must seek to avoid by adopting a saving statutory construction not at odds with fundamental legislative purposes. 14 In sum, the legislative history of the 1956 amendments provides no direct guidance on the purpose of the "lived with" provision or on whether it was intended to be restricted to children living with the parent at a particular time. The less restrictive construction proposed by the appellee appears fair and reasonable in light of the language, purpose, and history of the enactment, and it avoids a serious constitutional question. Before we conclude our inquiry, however, we must consider whether a 1966 amendment to the statute affected the children's right to recovery. 15 Congress enacted the 1966 amendments to the Act upon the request of the Executive Branch's Committee on Federal Staff Retirement Systems. One of these amendments removed the requirement that children must prove they received one-half of their support from the deceased employee in order to recover survivors' annuities. Act of July 18, 1966, Title V, § 502, 80 Stat. 300. Congress deleted the dependency requirement in order to ensure recovery for the children of female civil servants, who typically earned less than their husbands and accordingly contributed less than half of the support of their children.8 Congress also deleted the requirement of proof of dependency for stepchildren and "recognized natural" children, but retained the "lived with" requirement for those claimants. The reason for retaining the requirement was not clearly explained in the Cabinet Committee report, which simple stated: 16 "Stepchildren and natural children are eligible for benefits at present only when they have been dependent on the deceased parent and living with the parent in a regular parent-child relationship. The latter requirement should be retained; but, if it is fulfilled, the benefits should be paid as for any other child, without regard to the dependency requirement." H.R.Doc.No. 402, 89th Cong., 2d Sess., 41 (1966). 17 The Government views the 1966 amendment as evidence that Congress intended the "lived with" requirement to serve as a convenient method of determining whether the child received support from the deceased employee. This proposition appears implausible, since in the same sentence the Committee recommended that if the "lived with" requirement were met benefits should be paid "as for any other child, without regard to the dependency requirement." The Committee's use of the word "retained" is a further indication that Congress did not intend the "lived with" provision to assume a new function previously performed by the dependency requirement. Moreover, the Government's position again unnecessarily raises the equal protection question, because legitimate children and adopted children were not required to demonstrate that they had received support from the decedent. In the absence of any persuasive evidence to the contrary, therefore, we assume that Congress' failure to alter the "lived with" requirement likewise failed to modify the purpose of that provision as envisioned by the Congress that enacted it.9 18 We conclude that the "lived with" requirement is satisfied when a recognized natural child has lived with the deceased employee in a "regular parent-child relationship," regardless of whether the child was living with the employee at the time of the employee's death. Our consideration of the language and purpose of the statute and of the available legislative history convinces us that this construction is a fair and reasonable reading of the congressional enactment.10 Furthermore, the construction is necessary to avoid a serious constitutional question. By so holding, we do not believe that we are creating undue administrative difficulties for the Civil Service Commission. In this case, for example, the Commission relied on the Montana court's paternity decree and affidavits concerning when the appellee's children lived with the deceased employee. Similar documentary evidence would be equally probative of whether an illegitimate child claiming a survivors' annuity had ever lived with the deceased employee in a regular parent-child relationship.11 The judgment of the Court of Claims is 19 Affirmed. 20 Mr. Justice POWELL, with whom THE CHIEF JUSTICE joins, concurring in the judgment. 21 The question in this case is whether the illegitimate children of a federal employee, who lived with his children after their birth and had a legal obligation to contribute to their support until his death, are eligible to receive survivors' benefits under the Civil Service Retirement Act, 5 U.S.C. § 8331 et seq. The statutory definition of "child" under that Act includes a "recognized natural child who lived with the employee . . . in a regular parent-child relationship." 5 U.S.C. § 8341(a)(3) (A)(ii). Because I agree that these children satisfy the statutory definition, I concur in the judgment of the Court. I write separately because I do not believe that the Court's broad construction of the "lived with" requirement is compatible with congressional intent or necessary to avoid constitutional difficulties. 22 The Court recognizes that the "lived with" requirement could serve governmental purposes by providing proof of either paternity or dependence. The Court concludes that the "lived with" requirement is not designed to prove paternity because the statute separately requires that an eligible illegitimate be a "recognized natural child." Ante, at 30. I agree. 23 I cannot accept so easily the Court's further conclusion that the "lived with" requirement was not designed to prove dependency. Although the 1966 amendment demonstrates that the "lived with" requirement cannot be interpreted to demand that more than one-half of a child's support come from the deceased parent, it does not demonstrate that Congress intended to eliminate entirely the dependency requirement. As a matter of statutory construction and common sense, the statement that an illegitimate who fulfills the "lived with" requirement need not meet an additional dependency requirement, ante, at 32, quoting H.R.Doc. No. 402, 89th Cong., 2d Sess., 41 (1966), indicates that Congress intended the "lived with" test to serve as the functional equivalent of a dependency requirement. The Court's assumption to the contrary deprives the "lived with" requirement of any legislative purpose. Rather than construe a statutory provision to serve no identifiable congressional goal, I would conclude that Congress intended the "lived with" requirement to serve as a means through which illegitimate children may prove actual dependency on the deceased parent. 24 Congress may require illegitimate children to demonstrate actual dependency even though legitimate children are presumed to be dependent, Mathews v. Lucas, 427 U.S. 495, 507-509, 96 S.Ct. 2755, 2763-2764, 49 L.Ed.2d 651 (1976), so long as the means by which illegitimates must demonstrate such dependency are substantially related to achievement of the statutory goal. Lalli v. Lalli, 439 U.S. 259, 275-276, 99 S.Ct. 518, 528-529, 58 L.Ed.2d 503 (1978) (opinion of POWELL, J.); see Trimble v. Gordon, 430 U.S. 762, 770-773, 97 S.Ct. 1459, 1465-1466, 52 L.Ed.2d 31 (1977). The possible constitutional infirmity in the Government's construction of the statute is its assumption that only illegitimates who "lived with" a parent at the time of his death were actually dependent. Such a requirement may be unconstitutionally restrictive because, as in this case, it would bar the claims of children who lived with their father for some part of their lives, and who received support from their father until his death.* 25 The recognition of the children's claim in this case clearly does not frustrate the congressional intent that only dependent illegitimate children receive survivors' annuities. I therefore would hold that children who show a continuing relationship of dependency with their father, which includes living with him in the past and receiving support from him when they lived apart, satisfy the requirement of 5 U.S.C. § 8341(a)(3)(A)(ii). I do not believe, however, that the Court needs to find the requirement satisfied no matter when the child lived with the deceased parent. In some circumstances proof of a domestic living situation at some far distant period in the child's life may not demonstrate actual dependency. Accordingly, I would go no further than concluding that these children have satisfied the "lived with" requirement. 26 Mr. Justice REHNQUIST, with whom Mr. Justice STEWART joins, dissenting. 27 I am in full agreement with the Court that the statutory question should have been resolved in this case prior to any application of the constitutional issue decided by the Court of Claims in Gentry v. United States, 546 F.2d 343, 212 Ct.Cl. 1 (1976). Nor do I disagree with the Court's construction of the statute in issue. I dissent, however, because I believe that the Court should remand the case to the Court of Claims for consideration of the statutory claim in the first instance. 28 Federal courts should not, of course, resolve cases on the basis of constitutional questions when a nonconstitutional ground might be available. A federal court also may not award relief on the basis of a constitutional decision absent jurisdiction conferred by Congress. When a federal court violates either of these prudential or jurisdictional limitations, our standard practice is to remand the case for consideration of the statutory question. InYouakim v. Miller, 425 U.S. 231, 96 S.Ct. 1399, 47 L.Ed.2d 701 (1976), this Court found that a constitutional holding of a lower court might possibly be avoided by the construction of statutory requirements. The Court remanded, finding that the statutory issue might be dispositive, "but that the claim should be aired first in the District Court. Vacating the judgment and remanding the case for this purpose will require the District Court first to decide the statutory issue, . . . and if appellants prevail on that question, it will be unnecessary for either the District Court or this Court to reach the equal protection issue at all." Id., at 236, 96 S.Ct., at 1402. See also Wyman v. Rothstein, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128 (1946). In Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973), the District Court decided a constitutional question under an erroneous assumption of Tucker Act jurisdiction, and this Court found it necessary to remand the case so that the District Court could determine what other permissible grounds of decision may have been open to it. 29 The Court of Claims in this case was wrong in resolving this case on the basis of its constitutional holding, both as a matter of prudential considerations as well as jurisdiction. See United States v. Testan, 424 U.S. 392, 397-398, 96 S.Ct. 948, 952-953, 47 L.Ed.2d 114 (1976). While the Court of Claims did have jurisdiction to entertain the statutory question presented in this case, we should have permitted it the opportunity to exercise that jurisdiction. Only this Term, we remanded a case to the Court of Claims for consideration of an issue not resolved by that court. Hatzlachh Supply Co. v. United States, 444 U.S. 460, 100 S.Ct. 647, 62 L.Ed.2d 614 (1980). By remanding here, we would conform the disposition of this case to our customary practice which recognizes the usefulness of district and appellate court opinions on the questions ultimately reviewed here, as well as the need to reserve this Court's plenary consideration for questions still warranting final decision here after decision by another court. 1 On January 1, 1979, the Civil Service Commission was abolished, and the Office of Personnel Management assumed primary responsibility for the civil service retirement program. See Civil Service Reform Act of 1978, Pub.L.95-454, 92 Stat. 1111; Reorg. Plan No. 2 of 1978, 3 CFR 323 (1979). For convenience, throughout this opinion we shall refer to the agency administering the retirement program as the Civil Service Commission. 2 The appellee contends that this Court does not have jurisdiction to entertain this appeal. We disagree. By an order dated January 27, 1978, the Court of Claims held that the "lived with" requirement of 5 U.S.C. § 8341(a)(3)(A) applicable to illegitimate children violated the equal protection component of the Due Process Clause of the Fifth Amendment. The court then resolved the issue of relief and entered final judgment on November 6, 1978. The Government filed its notice of appeal on December 5, 1978. The appeal statute relied upon by the Government, 28 U.S.C. § 1252, provides: "Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party." (Emphasis added.) The appellee first contends that the Government failed to file a timely notice of appeal because it did not appeal the January 27, 1978, decision on the liability issue. Section 1252 would have allowed the Government to seek review of this interlocutory order declaring a federal statute unconstitutional, but its permissive language providing that any party "may appeal . . . from an interlocutory or final judgment" plainly did not require the Government to appeal before final judgment was entered. Cf. United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963) (review of final judgment under 28 U.S.C. § 1255 entails review of any interlocutory decisions on liability); Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1, 47-48, 63 S.Ct. 1393, 1414-1415, 87 L.Ed. 1731 (1943) (same); American Foreign S. S. Co. v. Matise, 423 U.S. 150, 96 S.Ct. 410, 46 L.Ed.2d 354 (1975) (same rule when jurisdiction based on 28 U.S.C. § 1254); Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 418, 43 S.Ct. 458, 462, 67 L.Ed. 719 (1923) (same). The appellee also argues that no appeal will lie under 28 U.S.C. § 1252 because the Court of Claims did not declare an Act of Congress unconstitutional. To the contrary, a determination that the "lived with" requirement of 5 U.S.C. § 8341(a)(3)(A) was unconstitutional was a necessary predicate to the relief the Court of Claims granted to the appellee's children, and this determination of unconstitutionality may be appealed under § 1252. McLucas v. DeChamplain, 421 U.S. 21, 30, 95 S.Ct. 1365, 1371, 43 L.Ed.2d 699 (1975); United States v. Raines, 362 U.S. 17, 20, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). It is irrelevant that the Court of Claims reached this holding by relying on its earlier decision in Gentry v. United States, 546 F.2d 343, 212 Ct.Cl. 1 (1976), rehearing denied 551 F.2d 852, 212 Ct.Cl. 27 (1977). An appeal under § 1252 lies for any federal-court decision declaring an Act of Congress unconstitutional in a civil action in which the United States is a party, not just for the first such decision. Cf. Garment Workers v. Donnelly Garment Co., 304 U.S. 243, 249, 58 S.Ct. 875, 879, 82 L.Ed. 1316 (1938). 3 The lower federal courts have uniformly held that the "lived with" requirement violates the equal protection component of the Due Process Clause of the Fifth Amendment. Gentry v. United States, supra; Jenkins v. U.S. Civil Service Comm'n, 460 F.Supp. 611 (D.C.1978); Proctor v. United States, 448 F.Supp. 418 (D.C.1977) (three-judge court); Tenny v. United States, 441 F.Supp. 224 (E.D.Mo.1977); Myers v. Commissioners of Civil Service Comm'n, Civ. No. 8682 (S.D.Ohio, Aug. 8, 1977). 4 See 45 U.S.C. § 231e(c)(1)(i) (Railroad Retirement Act benefits payable in certain circumstances to "the widow or widower of the deceased employee who was living with such employee at the time of such employee's death"); 42 U.S.C. § 416(e) (Social Security Act in part defines legally adopted child as a person who "was at the time of such individual's death living in such individual's household"); 42 U.S.C. § 416(h)(3)(A)(ii) (Social Security Act's definition of qualified child is met in part when "such insured individual is shown . . . to be the father of the applicant and was living with or contributing to the support of the applicant at the time such insured individual became entitled to benefits or attained age 65, whichever first occurred"). 5 See Visor v. United States, Civ. No. 9922(2) (ED Mo., Feb. 12, 1955). 6 By authorizing the payment of benefits to an "unmarried child who because of physical or mental disability is incapable of self-support," Act of Feb. 28, 1948, 62 Stat. 55, Congress apparently intended that, though disabled children over 18 years of age had to show they were unable to support themselves, they did not have to show they were dependent on the deceased parent. 7 The 1956 amendments also provided that a survivors' annuity was payable to a legitimate child with a surviving parent only if the child proved that he had received more than one-half his support from the deceased employee. Act of July 31, 1956, amending Title IV, § 10(d), 70 Stat. 754. 8 See S.Rep.No. 1187, 89th Cong., 2d Sess., 5 (1966); The Federal Salary and Fringe Benefits Act of 1966: Hearings on H.R. 14122 before the Senate Committee on Post Office and Civil Service, 89th Cong., 2d Sess., 7 (1966); Joint Annual Report of the Director of the Bureau of the Budget and the Chairman of the Civil Service Commission and the Report of the Cabinet Committee on Federal Staff Retirement Systems, H.R.Doc.No. 402, 89th Cong., 2d Sess., 41 (1966). 9 Two Committees of Congress, in passing on requests for legislation by the Civil Service Commission, have referred to the "lived with" requirement as a "living with" requirement. S.Rep.No. 92-527, p. 1 (1971), U.S. Code Cong. & Admin. News 1972, p. 1988; S.Rep.No. 1070, 89th Cong., 2d Sess., 1 (1966). See also H.R.Rep.No. 92-811, p. 3 (1972), U.S. Code Cong. & Admin. News 1972, p. 1988; H.R.Rep.No. 33, 89th Cong., 1st Sess., 3 (1965). We read the Committees' statements as nothing more than acknowledgments of the Commission's interpretation of the requirement, which was made known to each Committee by letters from the Commission. S.Rep.No. 92-527, supra, at 2-3; S.Rep.No. 1070, supra, at 3-4. In any event, the views of some Congressmen as to the construction of a statute adopted years before by another Congress have " 'very little, if any, significance.' " United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 2001, 20 L.Ed.2d 1001 (1968) (quoting Rainwater v. United States, 356 U.S. 590, 593, 78 S.Ct. 946, 949, 2 L.Ed.2d 996 (1958)). The 1966 recommendation of the Cabinet Committee on Federal Staff Retirement Systems referred to the "lived with" requirement as allowing benefits to recognized natural children "when they have been . . . living with the parent in a regular parent-child relationship." H.R.Doc.No. 402, 89th Cong., 2d Sess., 41 (1966). This language might appear to be inconsistent with our construction of the "lived with" requirement. The language was formulated by the Executive Branch, however, not by Congress, and at most simply reflects the Civil Service Commission's interpretation of the statute. 10 We recognize that the Civil Service Commission has interpreted the "lived with" requirement to be a "living with" requirement, although the Government does not inform us whether the agency interpretation was contemporaneous with the 1956 enactment. We do not disregard this evidence of the meaning of the statute. See, e. g., Batterton v. Francis, 432 U.S. 416, 425, n. 9, 97 S.Ct. 2399, 2405, n. 9, 53 L.Ed.2d 448 (1977). In view of our analysis of the statute and its legislative history, and considering the need to avoid unnecessary constitutional adjudication, however, the agency interpretation would not be decisive even if it were contemporaneous. 11 Because we hold that the Civil Service Retirement Act expressly allows the appellee's children to receive survivors' annuities, there is no question that the Court of Claims below had both jurisdiction to entertain their claims and authority to grant recovery. See United States v. Testan, 424 U.S. 392, 397-398, 96 S.Ct. 948, 952-953, 47 L.Ed.2d 114 (1976); Eastport S. S. Corp. v. United States, 372 F.2d 1002, 1007-1009, 178 Ct.Cl. 599, 606-607 (1967). In light of our holding, we need not address the Government's argument that the Court of Claims exceeded its jurisdiction when it declared 5 U.S.C. § 8341(a)(3)(A)'s "lived with" requirement unconstitutional, severed that requirement from the statute, and awarded relief to the appellee's children based on the remaining language in the statute. Cf. United States v. Testan, supra. * I believe that the Court errs in assuming that its broad interpretation of the "lived with" requirement will always avoid constitutional difficulty. The imposition of the "lived with" requirement as a test of actual dependency may be unconstitutional in a case in which a father had always supported, but never lived with, an illegitimate child.

12

445 U.S. 39 100 S.Ct. 1092 63 L.Ed.2d 185 Commonwealth of MASSACHUSETTS, petitioner,v.Joseph MEEHAN No. 78-1874 Supreme Court of the United States February 26, 1980 On Writ of Certiorari to the Supreme Judicial Court of Massachusetts. PER CURIAM. 1 The writ of certiorari is dismissed as improvidently granted.

89

445 U.S. 1 100 S.Ct. 883 63 L.Ed.2d 154 WHIRLPOOL CORPORATION, Petitioner,v.Ray MARSHALL, Secretary of Labor. No. 78-1870. Argued Jan. 9, 1980. Decided Feb. 26, 1980. Syllabus Section 11(c)(1) of the Occupational Safety and Health Act of 1970 (Act) prohibits an employer from discharging or discriminating against any employee who exercises "any right afforded by" the Act. Respondent Secretary of Labor promulgated a regulation providing that, among other rights protected by the Act, is the right of an employee to choose not to perform his assigned task because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available. Claiming that a suspended wire-mesh screen in petitioner's manufacturing plant used to protect employees from objects occasionally falling from an overhead conveyor was unsafe, two employees of petitioner refused to comply with their foreman's order to perform their usual maintenance duties on the screen. They were then ordered to punch out without working or being paid for the remainder of their shift, and subsequently received written reprimands, which were placed in their employment files. Thereafter, respondent brought suit in Federal District Court, alleging that petitioner's actions against the two employees constituted discrimination in violation of § 11(c)(1) of the Act, and seeking injunctive and other relief. While finding that the implementing regulation justified the employees' refusals to obey their foreman's order, the District Court nevertheless denied relief, holding that the regulation was inconsistent with the Act and therefore invalid. The Court of Appeals reversed and remanded, agreeing that the employees' actions were justified under the regulation but disagreeing with the conclusion that the regulation was invalid. Held: The regulation in question was promulgated by respondent in the valid exercise of his authority under the Act, and constitutes a permissible gloss on the Act, in light of the Act's language, structure, and legislative history. Pp. 8-22. (a) The regulation clearly conforms to the Act's fundamental objective of preventing occupational deaths and serious injuries. Moreover, the regulation is an appropriate aid to the full effectuation of the Act's "general duty" clause, which requires an employer to furnish to each of his employees employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious injury to the employees. The regulation thus on its face appears to further the Act's overriding purpose and rationally complements its remedial scheme. Pp. 11-13. (b) The facts that Congress, at the time it was considering passage of the Act, rejected a so-called "strike with pay" provision (whereby an obligation would be imposed on employers to continue to pay employees who absented themselves from work for reasons of safety), and also rejected a provision that would have given the Labor Department, in imminent-danger situations, the power temporarily to shut down all or part of an employer's plant, do not indicate a congressional intent incompatible with an administrative interpretation of the Act such as is embodied in the regulation at issue. In contrast to the "strike with pay" provision, the regulation does not require employers to pay workers who refuse to perform assigned tasks in face of imminent danger, but simply provides that in such case the employer may not "discriminate" against the employees involved. And in contrast to the "shutdown" provision, the regulation accords no authority to Government officials but simply permits private employees to avoid workplace conditions that they believe pose grave dangers to their own safety and does not empower such employees to order their employers to correct the hazardous condition. Pp. 13-21. 593 F.2d 715, affirmed. Robert E. Mann, Chicago, Ill., for petitioner. Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for respondent. Mr. Justice STEWART delivered the opinion of the Court. 1 The Occupational Safety and Health Act of 1970 (Act)1 prohibits an employer from discharging or discriminating against any employee who exercises "any right afforded by" the Act.2 The Secretary of Labor (Secretary) has promulgated a regulation providing that, among the rights that the Act so protects, is the right of an employee to choose not to perform his assigned task because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available.3 The question presented in the case before us is whether this regulation is consistent with the Act. 2 * The petitioner company maintains a manufacturing plant in Marion, Ohio, for the production of household appliances. Overhead conveyors transport appliance components throughout the plant. To protect employees from objects that occasionally fall from these conveyors, the petitioner has installed a horizontal wire-mesh guard screen approximately 20 feet above the plant floor. This mesh screen is welded to angle-iron frames suspended from the building's structural steel skeleton. 3 Maintenance employees of the petitioner spend several hours each week removing objects from the screen, replacing paper spread on the screen to catch grease drippings from the material on the conveyors, and performing occasional maintenance work on the conveyors themselves. To perform these duties, maintenance employees usually are able to stand on the iron frames, but sometimes find it necessary to step onto the steel mesh screen itself. 4 In 1973, the company began to install heavier wire in the screen because its safety had been drawn into question. Several employees had fallen partly through the old screen, and on one occasion an employee had fallen completely through to the plant floor below but had survived. A number of maintenance employees had reacted to these incidents by bringing the unsafe screen conditions to the attention of their foremen. The petitioner company's contemporaneous safety instructions admonished employees to step only on the angle-iron frames. 5 On June 28, 1974, a maintenance employee fell to his death through the guard screen in an area where the newer, stronger mesh had not yet been installed.4 Following this incident, the petitioner effectuated some repairs and issued an order strictly forbidding maintenance employees from stepping on either the screens or the angle-iron supporting structure. An alternative but somewhat more cumbersome and less satisfactory method was developed for removing objects from the screen. This procedure required employees to stand on power-raised mobile platforms and use hooks to recover the material. 6 On July 7, 1974, two of the petitioner's maintenance employees, Virgil Deemer and Thomas Cornwell, met with the plant maintenance superintendent to voice their concern about the safety of the screen. The superintendent disagreed with their view, but permitted the two men to inspect the screen with their foreman and to point out dangerous areas needing repair. Unsatisfied with the petitioner's response to the results of this inspection, Deemer and Cornwell met on July 9 with the plant safety director. At that meeting, they requested the name, address, and telephone number of a representative of the local office of the Occupational Safety and Health Administration (OSHA). Although the safety director told the men that they "had better stop and think about what [they] were doing," he furnished the men with the information they requested. Later that same day, Deemer contacted an official of the regional OSHA office and discussed the guard screen.5 7 The next day, Deemer and Cornwell reported for the night shift at 10:45 p. m. Their foreman, after himself walking on some of the angle-iron frames, directed the two men to perform their usual maintenance duties on a section of the old screen.6 Claiming that the screen was unsafe, they refused to carry out this directive. The foreman then sent them to the personnel office, where they were ordered to punch out without working or being paid for the remaining six hours of the shift.7 The two men subsequently received written reprimands, which were placed in their employment files. 8 A little over a month later, the Secretary filed suit in the United States District Court for the Northern District of Ohio, alleging that the petitioner's actions against Deemer and Cornwell constituted discrimination in violation of § 11(c)(1) of the Act.8 As relief, the complaint prayed, inter alia, that the petitioner be ordered to expunge from its personnel files all references to the reprimands issued to the two employees, and for a permanent injunction requiring the petitioner to compensate the two employees for the six hours of pay they had lost by reason of their disciplinary suspensions. 9 Following a bench trial, the District Court found that the regulation in question9 justified Deemer's and Cornwell's refusals to obey their foreman's order on July 10, 1974. The court found that the two employees had "refused to perform the cleaning operation because of a genuine fear of death or serious bodily harm," that the danger presented had been "real and not something which [had] existed only in the minds of the employees," that the employees had acted in good faith, and that no reasonable alternative had realistically been open to them other than to refuse to work. The District Court nevertheless denied relief, holding that the Secretary's regulation was inconsistent with the Act and therefore invalid. Usery v. Whirlpool Corp., 416 F.Supp. 30, 32-34. 10 The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. 593 F.2d 715. Finding ample support in the record for the District Court's factual determination that the actions of Deemer and Cornwell had been justified under the Secretary's regulation, id., at 719, n. 5,10 the appellate court disagreed with the District Court's conclusion that the regulation is invalid. Id., at 721-736. It accordingly remanded the case to the District Court for further proceedings. Id., at 736. We granted certiorari, 444 U.S. 823, 100 S.Ct. 43, 62 L.Ed.2d 29, because the decision of the Court of Appeals in this case conflicts with those of two other Courts of Appeals on the important question in issue. See Marshall v. Daniel Construction Co., 563 F.2d 707 (CA5 1977); Marshall v. Certified Welding Corp., No. 77-2048 (CA10 Dec. 28, 1978). That question, as stated at the outset of this opinion, is whether the Secretary's regulation authorizing employee "self-help" in some circumstances, 29 CFR § 1977.12(b)(2) (1979), is permissible under the Act. II 11 The Act itself creates an express mechanism for protecting workers from employment conditions believed to pose an emergent threat of death or serious injury. Upon receipt of an employee inspection request stating reasonable grounds to believe that an imminent danger is present in a workplace, OSHA must conduct an inspection. 29 U.S.C. § 657(f)(1). In the event this inspection reveals workplace conditions or practices that "could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by" the Act,11 29 U.S.C. § 662(a), the OSHA inspector must inform the affected employees and the employer of the danger and notify them that he is recommending to the Secretary that injunctive relief be sought. § 662(c). At this juncture, the Secretary can petition a federal court to restrain the conditions or practices giving rise to the imminent danger. By means of a temporary restraining order or preliminary injunction, the court may then require the employer to avoid, correct, or remove the danger or to prohibit employees from working in the area. § 662(a).12 12 To ensure that this process functions effectively, the Act expressly accords to every employee several rights, the exercise of which may not subject him to discharge or discrimination. An employee is given the right to inform OSHA of an imminently dangerous workplace condition or practice and request that OSHA inspect that condition or practice. 29 U.S.C. § 657(f)(1).13 He is given a limited right to assist the OSHA inspector in inspecting the workplace, §§ 657(a)(2), (e), and (f)(2), and the right to aid a court in determining whether or not a risk of imminent danger in fact exists. See § 660(c)(1). Finally, an affected employee is given the right to bring an action to compel the Secretary to seek injunctive relief if he believes the Secretary has wrongfully declined to do so. § 662(d). 13 In the light of this detailed statutory scheme, the Secretary is obviously correct when he acknowledges in his regulation that, "as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace."14 By providing for prompt notice to the employer of an inspector's intention to seek an injunction against an imminently dangerous condition, the legislation obviously contemplates that the employer will normally respond by voluntarily and speedily eliminating the danger. And in the few instances where this does not occur, the legislative provisions authorizing prompt judicial action are designed to give employees full protection in most situations from the risk of injury or death resulting from an imminently dangerous condition at the worksite. 14 As this case illustrates, however, circumstances may sometimes exist in which the employee justifiably believes that the express statutory arrangement does not sufficiently protect him from death or serious injury. Such circumstances will probably not often occur, but such a situation may arise when (1) the employee is ordered by his employer to work under conditions that the employee reasonably believes pose an imminent risk of death or serious bodily injury, and (2) the employee has reason to believe that there is not sufficient time or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger. 15 Nothing in the Act suggests that those few employees who have to face this dilemma must rely exclusively on the remedies expressly set forth in the Act at the risk of their own safety. But nothing in the Act explicitly provides otherwise. Against this background of legislative silence, the Secretary has exercised his rulemaking power under 29 U.S.C. § 657(g)(2) and has determined that, when an employee in good faith finds himself in such a predicament, he may refuse to expose himself to the dangerous condition, without being subjected to "subsequent discrimination" by the employer. 16 The question before us is whether this interpretative regulation15 constitutes a permissible gloss on the Act by the Secretary, in light of the Act's language, structure, and legislative history. Our inquiry is informed by an awareness that the regulation is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act. Skidmore v. Swift & Co., 323 U.S. 134, 139-140, 65 S.Ct. 161, 164, 89 L.Ed. 124. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22; Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318. 17 The regulation clearly conforms to the fundamental objective of the Act—to prevent occupational deaths and serious injuries.16 The Act, in its preamble, declares that its purpose and policy is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . . ." 29 U.S.C. § 651(b). (Emphasis added.) 18 To accomplish this basic purpose, the legislation's remedial orientation is prophylactic in nature. See Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 422, 444-445, 97 S.Ct. 1261, 1263-1264, 51 L.Ed.2d 464. The Act does not wait for an employee to die or become injured. It authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths or injuries from ever occurring. It would seem anomalous to construe an Act so directed and constructed as prohibiting an employee, with no other reasonable alternative, the freedom to withdraw from a workplace environment that he reasonably believes is highly dangerous. 19 Moreover, the Secretary's regulation can be viewed as an appropriate aid to the full effectuation of the Act's "general duty" clause. That clause provides that "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a)(1). As the legislative history of this provision reflects,17 it was intended itself to deter the occurrence of occupational deaths and serious injuries by placing on employers a mandatory obligation independent of the specific health and safety standards to be promulgated by the Secretary. Since OSHA inspectors cannot be present around the clock in every workplace, the Secretary's regulation ensures that employees will in all circumstances enjoy the rights afforded them by the "general duty" clause. 20 The regulation thus on its face appears to further the overriding purpose of the Act, and rationally to complement its remedial scheme.18 In the absence of some contrary indication in the legislative history, the Secretary's regulation must, therefore, be upheld, particularly when it is remembered that safety legislation is to be liberally construed to effectuate the congressional purpose. United States v. Bacto-Unidisk, 394 U.S. 784, 798, 89 S.Ct. 1410, 1418, 22 L.Ed.2d 762; Lilly v. Grand Trunk R. Co., 317 U.S. 481, 486, 63 S.Ct. 347, 351, 87 L.Ed. 411. B 21 In urging reversal of the judgment before us, the petitioner relies primarily on two aspects of the Act's legislative history. 22 * Representative Daniels of New Jersey sponsored one of several House bills that led ultimately to the passage of the Act.19 As reported to the House by the Committee on Education and Labor, the Daniels bill contained a section that was soon dubbed the "strike with pay" provision.20 This section provided that employees could request an examination by the Department of Health, Education, and Welfare (HEW) of the toxicity of any materials in their workplace. If that examination revealed a workplace substance that had "potentially toxic or harmful effects in such concentration as used or found," the employer was given 60 days to correct the potentially dangerous condition. Following the expiration of that period, the employer could not require that an employee be exposed to toxic concentrations of the substance unless the employee was informed of the hazards and symptoms associated with the substance, the employee was instructed in the proper precautions for dealing with the substance, and the employee was furnished with personal protective equipment. If these conditions were not met, an employee could "absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period." 23 This provision encountered stiff opposition in the House. Representative Steiger of Wisconsin introduced a substitute bill containing no "strike with pay" provision.21 In response, Representative Daniels offered a floor amendment that, among other things, deleted his bill's "strike with pay" provision.22 He suggested that employees instead be afforded the right to request an immediate OSHA inspection of the premises, a right which the Steiger bill did not provide. The House ultimately adopted the Steiger bill.23 24 The bill that was reported to and, with a few amendments, passed by the Senate never contained a "strike with pay" provision.24 It did, however, give employees the means by which they could request immediate Labor Department inspections.25 These two characteristics of the bill were underscored on the floor of the Senate by Senator Williams, the bill's sponsor.26 25 After passage of the Williams bill by the Senate, it and the Steiger bill were submitted to a Conference Committee. There, the House acceded to the Senate bill's inspection request provisions.27 26 The petitioner reads into this legislative history a congressional intent incompatible with an administrative interpretation of the Act such as is embodied in the regulation at issue in this case. The petitioner argues that Congress' overriding concern in rejecting the "strike with pay" provision was to avoid giving employees a unilateral authority to walk off the job which they might abuse in order to intimidate or harass their employer. Congress deliberately chose instead, the petitioner maintains, to grant employees the power to request immediate administrative inspections of the workplace which could in appropriate cases lead to coercive judicial remedies. As the petitioner views the regulation, therefore, it gives to workers precisely what Congress determined to withhold from them. 27 We read the legislative history differently. Congress rejected a provision that did not concern itself at all with conditions posing real and immediate threats of death or severe injury. The remedy which the rejected provision furnished employees could have been invoked only after 60 days had passed following HEW's inspection and notification that improperly high levels of toxic substances were present in the workplace. Had that inspection revealed employment conditions posing a threat of imminent and grave harm, the Secretary of Labor would presumably have requested, long before expiration of the 60-day period, a court injunction pursuant to other provisions of the Daniels bill.28 Consequently, in rejecting the Daniels bill's "strike with pay" provision, Congress was not rejecting a legislative provision dealing with the highly perilous and fast-moving situations covered by the regulation now before us. 28 It is also important to emphasize that what primarily troubled Congress about the Daniels bill's "strike with pay" provision was its requirement that employees be paid their regular salary after having properly invoked their right to refuse to work under the section.29 It is instructive that virtually every time the issue of an employee's right to absent himself from hazardous work was discussed in the legislative debates, it was in the context of the employee's right to continue to receive his usual compensation.30 29 When it rejected the "strike with pay" concept, therefore, Congress very clearly meant to reject a law unconditionally imposing upon employers an obligation to continue to pay their employees their regular paychecks when they absented themselves from work for reasons of safety. But the regulation at issue here does not require employers to pay workers who refuse to perform their assigned tasks in the face of imminent danger. It simply provides that in such cases the employer may not "discriminate" against the employees involved. An employer "discriminates" against an employee only when he treats that employee less favorably than he treats others similarly situated.31 2 30 The second aspect of the Act's legislative history upon which the petitioner relies is the rejection by Congress of provisions contained in both the Daniels and the Williams bills that would have given Labor Department officials, in imminent-danger situations, the power temporarily to shut down all or part of an employer's plant.32 These provisions aroused considerable opposition in both Houses of Congress. The hostility engendered in the House of Representatives led Representative Daniels to delete his ersion of the provision in proposing amendments to his original bill.33 The Steiger bill that ultimately passed the House gave the Labor Department no such authority.34 The Williams bill, as approved by the Senate, did contain an administrative shutdown provision, but the Conference Committee rejected this aspect of the Senate bill.35 31 The petitioner infers from these events a congressional will hostile to the regulation in question here. The regulation, the petitioner argues, provides employees with the very authority to shut down an employer's plant that was expressly denied a more expert and objective United States Department of Labor. 32 As we read the pertinent legislative history, however, the petitioner misconceives the thrust of Congress' concern. Those in Congress who prevented passage of the administrative shutdown provisions in the Daniels and Williams bills were opposed to the unilateral authority those provisions gave to federal officials, without any judicial safeguards, drastically to impair the operation of an employer's business.36 Congressional opponents also feared that the provisions might jeopardize the Government's otherwise neutral role in labor-management relations.37 33 Neither of these congressional concerns is implicated by the regulation before us. The regulation accords no authority to Government officials. It simply permits private employees of a private employer to avoid workplace conditions that they believe pose grave dangers to their own safety. The employees have no power under the regulation to order their employer to correct the hazardous condition or to clear the dangerous workplace of others. Moreover, any employee who acts in reliance on the regulation runs the risk of discharge or reprimand in the event a court subsequently finds that he acted unreasonably or in bad faith. The regulation, therefore, does not remotely resemble the legislation that Congress rejected. C 34 For these reasons we conclude that 29 CFR § 1977.12(b)(2) (1979) was promulgated by the Secretary in the valid exercise of his authority under the Act. Accordingly, the judgment of the Court of Appeals is affirmed. 35 It is so ordered. 1 84 Stat. 1590, as amended, 92 Stat. 183, 29 U.S.C. §§ 651 et seq. (1976 ed. and Supp.II). 2 Section 11(c)(1) of the Act, 84 Stat. 1603, 29 U.S.C. § 660(c)(1), provides in full: "No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act." 3 The regulation, 29 CFR § 1977.12 (1979), provides in full: "(a) In addition to protecting employees who file complaints, institute proceedings, or testify in proceedings under or related to the Act, section 11(c) also protects employees from discrimination occurring because of the exercise 'of any right afforded by this Act.' Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (sec. 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation. "(b)(1) On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards. "(2) However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition." 4 As a result of this fatality, the Secretary conducted an investigation that led to the issuance of a citation charging the company with maintaining an unsafe walking and working surface in violation of 29 U.S.C. § 654(a)(1). The citation required immediate abatement of the hazard and proposed a $600 penalty. Nearly five years following the accident, the Occupational Safety and Health Review Commission affirmed the citation, but decided to permit the petitioner six months in which to correct the unsafe condition. Whirlpool Corp., 1979 CCH OSHD ¶ 23,552. A petition to review that decision is pending in the United States Court of Appeals for the District of Columbia Circuit. 5 The record does not disclose the substance of this conversation beyond the fact that it concerned the safety of the guard screen. 6 This order appears to have been in direct violation of the outstanding company directive that maintenance work was to be accomplished without stepping on the screen apparatus. 7 Both employees apparently returned to work the following day without further incident. 8 See n. 2, supra. 9 See n. 3, supra. 10 In its petition for certiorari, the petitioner did not cite this aspect of the Court of Appeals' decision as raising a question for review. Accordingly, the issue of whether the regulation covers the particular circumstances of this case is not before the Court. This Court's Rule 23(1)(c); General Pictures Co. v. Electric Co., 304 U.S. 175, 177-179, 58 S.Ct. 849, 850-51, 82 L.Ed. 1273. 11 These usual enforcement procedures involve the issuance of citations and imposition of penalties. When an OSHA inspection reveals a violation of 29 U.S.C. § 654 or of any standard promulgated under the Act, the Secretary may issue a citation for the alleged violation, fix a reasonable time for the dangerous condition's abatement, and propose a penalty. §§ 658(a), 659(a), 666. The employer may contest the citation and proposed penalty. § 659(a), (c). Should he do so, the effective date of the abatement order is postponed until the completion of all administrative proceedings initiated in good faith. §§ 659(b), 666(d). Such proceedings may include a hearing before an administrative law judge and review by the Occupational Safety and Health Review Commission. §§ 659(c), 661(i). 12 Such an order may continue pending the consummation of the Act's normal enforcement proceedings. § 662(b). 13 Should the Secretary determine that "there are no reasonable grounds to believe that a violation or danger exists he shall notify the employe[e] . . . of such determination." § 657(f)(1). 14 See n. 3, supra. 15 The petitioner has raised no issue concerning whether or not this regulation was promulgated in accordance with the procedural requirements of the Administrative Procedure Act (APA), 5 U.S.C. § 553. Thus, we accept the Secretary's designation of the regulation as "interpretative," and do not consider whether it qualifies as an "interpretative rule" within the meaning of the APA, 5 U.S.C. § 553(b)(A). 16 The Act's legislative history contains numerous references to the Act's preventive purpose and to the tragedy of each individual death or accident. See, e. g., S.Rep.No.91-1282, p. 2 (1970) (hereinafter S.Rep.), Leg.Hist. 142; 116 Cong.Rec. 37628 (1970), Leg.Hist. 516-517 (Sen. Nelson); 116 Cong.Rec. 37628, 37630 (1970), Leg.Hist. 518, 522 (Sen. Cranston); 116 Cong.Rec. 37630 (1970), Leg.Hist. 522-523 (Sen. Randolph); H.R.Rep.No.91-1291, pp. 14, 23 (1970) (hereinafter H.R.Rep.), Leg.Hist. 844, 853; 116 Cong.Rec. 38366 (1970), Leg.Hist. 978 (Rep. Young); 116 Cong.Rec. 38367-38368 (1970), Leg.Hist. 981 (Rep. Anderson); 116 Cong.Rec. 38386 (1970), Leg.Hist. 1031, 1032 (Rep. Dent); 116 Cong.Rec. 42203 (1970), Leg.Hist. 1210 (Rep. Daniels). As stated by Senator Yarborough, a sponsor of the Senate bill: "We are talking about people's lives, not the indifference of some cost accountants. We are talking about assuring the men and women who work in our plants and factories that they will go home after a day's work with their bodies intact." 116 Cong.Rec. 37625 (1970), Leg.Hist. 510. House and Senate debates are reprinted, along with the House, Senate, and Conference Reports, in a one-volume Committee Print entitled Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess. (June 1971) (cited supra and hereafter as Leg.Hist.). 17 See S.Rep. 9-10, Leg.Hist. 149-150; H.R.Rep. 21-22, Leg.Hist. 851-852. 18 It is also worth noting that the Secretary's interpretation of 29 U.S.C. § 660(c)(1) conforms to the interpretation that Congress clearly wished the courts to give to the parallel antidiscrimination provision of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 ed. and Supp.II). The legislative history of that provision, 30 U.S.C. § 815(c)(1), (1976 ed., and Supp.II), establishes that Congress intended it to protect "the refusal to work in conditions which are believed to be unsafe or unhealthful." S.Rep.No.95-181, p. 35 (1977). See id., at 36; 123 Cong.Rec. 20043-20044 (1977) (remarks of Sen. Church, Sen. Williams, Sen. Javits). 19 H.R.16785, 91st Cong., 2d Sess. (1970), Leg.Hist. 893-976 (bill as reported to the House). See H.R.Rep., Leg.Hist. 831. 20 Section 19(a)(5) of H.R.16785, supra, Leg.Hist. 969-970 (as reported to the House floor) provided in relevant part: "The Secretary of Health, Education, and Welfare shall publish . . . a list of all known or potentially toxic substances and the concentrations at which such toxicity is known to occur; and shall determine following a request by any employer or authorized representative of any group of employees whether any substance normally found in the working place has potentially toxic or harmful effects in such concentration as used or found; and shall submit such determination both to employers and affected employees as soon as possible. Within sixty days of such determination by the Secretary of Health, Education, and Welfare of potential toxicity of any substance, an employer shall not require any employee to be exposed to such substance designated above in toxic or greater concentrations unless it is accompanied by information, made available to employees, by label or other appropriate means, of the known hazards or toxic or long-term ill effects, the nature of the substance, and the signs, symptoms, emergency treatment and proper conditions and precautions of safe use, and personal protective equipment is supplied which allows established work procedures to be performed with such equipment, or unless such exposed employee may absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period." The Committee Report explained the provision as follows: "There is still a real danger that an employee may be economically coerced into self-exposure in order to earn his livelihood, so the bill allows an employee to absent himself from that specific danger for the period of its duration without loss of pay. . . . Nothing herein restricts the right of the employer, except as he is obligated under other agreements, to assign a worker to other non-prohibited work during this time. This should eliminate possible abuse by allowing the employer to avoid payment for work not performed." H.R.Rep. 30, Leg.Hist. 860. 21 H.R.19200, 91st Cong., 2d Sess. (1970), Leg.Hist. 763-830 (bill as originally introduced). See H.Res. 1218, 91st Cong., 2d Sess. (1970), Leg.Hist. 977. 22 116 Cong.Rec. 38376, 38377-38378, 38707 (1970), Leg.Hist. 1004, 1005, 1008-1009, 1071 (Rep. Daniels). See 116 Cong.Rec. 38369 (1970), Leg.Hist. 986 (Rep. Perkins). Representative Daniels explained to the House why he was proposing his amendment: "The provision on employees not losing pay was so generally misunderstood that we have decided to drop it. We have no provision for payment of employees who want to absent themselves from risk of harm; instead, we have this amendment which enables employees subject to a risk of harm to get the Secretary into the situation quickly. Instead of making provisions for employees when their employer is not providing a safe workplace, we have strengthened the enforcement by this amendment provision to try and minimize the amount that employees will be subject to the risk of harm." 116 Cong.Rec. 38377-38378 (1970), Leg.Hist. 1009. 23 116 Cong.Rec. 38715 (teller vote), 38723-38724 (roll call vote) (1970), Leg.Hist. 1091, 1112-1115. Representative Daniels' proposed amendments were never acted upon. His original bill was voted down in favor of the Steiger bill. See 116 Cong.Rec. 38704-38705 (1970), Leg.Hist. 1064 (the Chairman and Rep. Perkins); 116 Cong.Rec. 38707 (1970), Leg.Hist. 1072 (Rep. O'Hara). 24 S.2193, 91st Cong., 2d Sess. (1970), Leg.Hist. 204-295 (bill as reported to Senate by Senate Committee on Labor and Public Welfare). See S.Rep., Leg.Hist. 141. 25 See S.2193, supra, § 8(f)(1), Leg.Hist. 252-253. 26 "[D]espite some wide-spread contentions to the contrary, . . . the committee bill does not contain a so-called strike-with-pay provision. Rather than raising a possibility for endless disputes over whether employees were entitled to walk off the job with full pay, it was decided in committee to enhance the prospects of compliance by the employer through such means as giving the employees the right to request a special Labor Department investigation or inspection." 116 Cong.Rec. 37326 (1970), Leg.Hist. 416. 27 H.R.Conf.Rep.No.91-1765, pp. 37-38 (1970), Leg.Hist. 1190-1191. See 29 U.S.C. § 657(f). 28 See H.R.16785, supra, n. 19, § 12(b), Leg.Hist. 956 (bill as reported to House). 29 Congress' concern necessarily was with the provision's compensation requirement. The law then, as it does today, already afforded workers a right, under certain circumstances, to walk off their jobs when faced with hazardous conditions. See 116 Cong.Rec. 42208 (1970), Leg.Hist. 1223-1224 (Rep. Scherle) (reference to Taft-Hartley Act). Under Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, employees have a protected right to strike over safety issues. See NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298. Similarly, Section 502 of the Labor Management Relations Act, 29 U.S.C. § 143, provides that "the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees [shall not] be deemed a strike." The effect of this section is to create an exception to a no-strike obligation in a collective-bargaining agreement. Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 385, 94 S.Ct. 629, 640, 38 L.Ed.2d 583. The existence of these statutory rights also make clear that the Secretary's regulation does not conflict with the general pattern of federal labor legislation in the area of occupational safety and health. See also 29 CFR § 1977.18 (1979). 30 See 116 Cong.Rec. 37326 (1970), Leg.Hist. 416 (Sen. Williams); 116 Cong.Rec. 38369 (1970), Leg.Hist. 986 (Rep. Perkins); 116 Cong.Rec. 38376, 38377-38378, 38707 (1970), Leg.Hist. 1005, 1009, 1071 (Rep. Daniels); 116 Cong.Rec. 38379 (1970), Leg. Hist. 1011 (Rep. Randall); 116 Cong.Rec. 38391 (1970), Leg.Hist. 1046 (Rep. Feighan); 116 Cong.Rec. 38714 (1970), Leg.Hist. 1089 (Rep. Horton). The petitioner cites two passages in the legislative debates that, at first blush, appear to suggest that Congress was also concerned with employee walkouts not accompanied by pay. One is a statement by Representative Cohelan, a supporter of the Daniels bill, that "a comprehensive occupational safety and health program . . . must permit the worker to leave his post whenever and wherever conditions exist that endanger his health or safety." 116 Cong.Rec. 38375 (1970), Leg.Hist. 1001. The other is a statement by another Member that the Daniels bill did not authorize "strikes without pay." 116 Cong.Rec. 38708 (1970), Leg.Hist. 1075. Read in context, however, it is clear that both statements were referring to the "strike with pay" provision contained in the Daniels bill. 31 Deemer and Cornwell were clearly subjected to "discrimination" when the petitioner placed reprimands in their respective employment files. Whether the two employees were also discriminated against when they were denied pay for the approximately six hours they did not work on July 10, 1974, is a question not now before us. The District Court dismissed the complaint without indicating what relief it thought would have been appropriate had it upheld the Secretary's regulation. The Court of Appeals expressed no view concerning the limits of the relief to which the Secretary might ultimately be entitled. On remand, the District Court will reach this issue. 32 The version contained in the Daniels bill would have authorized the Secretary to issue a shutdown order of no more than five days' duration. See H.R.16785, supra, n.19, § 12(a), Leg.Hist. 955-956 (bill as reported to the House); H.R.Rep. 25, Leg.Hist. 855. As reported to the Senate, the version contained in the Williams bill limited the permissible duration of the administrative order to 72 hours and required that a Regional Director of the Labor Department concur in the order. S.2193, supra n.24, § 11(b), Leg.Hist. 263-264. See S.Rep. 12-13, Leg.Hist. 152-153; S.Rep. 56-57, Leg.Hist. 195-196 (individual views of Sen. Javits). On the floor of the Senate, amendments were adopted that would have required the Labor Department official authorizing the inspector's actions to be an official appointed with the advice and consent of the Senate and that would have mandated that the employer be given prior notice of the reasons for the shutdown. 116 Cong.Rec. 37621-37622 (1970), Leg.Hist. 499-500; 116 Cong.Rec. 37624-37625 (1970), Leg.Hist. 508-509. See S.2193, supra n.24, § 12(b), Leg.Hist. 562-563 (bill as passed by Senate). 33 116 Cong.Rec. 38372, 38376, 38378, 38707 (1970), Leg.Hist. 993, 1005, 1009-1010, 1011, 1071 (Rep. Daniels). As Representative Daniels explained: "[B]usiness groups have expressed great fears about the potential for abuse. They believe that the power to shut down a plant should not be vested in an inspector. While there is no documentation for this fear, we recognize that it is very prevalent. The Courts have shown their capacity to respond quickly in emergency situations, and we believe that the availability of temporary restraining orders will be sufficient to deal with emergency situations. Under the Federal rules of civil procedure, these orders can be used ex parte. If the Secretary uses the authority that he is given efficiently and expeditiously, he should be able to get a court order within a matter of minutes rather than hours." 116 Cong.Rec. 38378, Leg.Hist. 1009-1010. 34 H.R.19200, supra n.21, § 12, Leg.Hist. 796-798. 35 H.R.Conf.Rep.No.90-1765, supra n.27, at 40, Leg.Hist. 1193. 36 See 116 Cong.Rec. 35607, 37602 (1970), Leg.Hist. 299, 452-453 (Sen. Saxbe); 116 Cong.Rec. 37338 (1970), Leg.Hist. 425 (Sen. Dominick); 116 Cong.Rec. 37602 (1970), Leg.Hist. 453-454 (Sen. Schweiker); 116 Cong.Rec. 41763 (1970), Leg.Hist. 1149 (Sen. Prouty); H.R.Rep.55-57, Leg.Hist. 885-887 (minority report); 116 Cong.Rec. 38368 (1970), Leg.Hist. 983 (Rep. Anderson); 116 Cong.Rec. 38372, 38702 (1970), Leg.Hist. 992, 1058 (Rep. Steiger); 116 Cong.Rec. 38378-38379 (1970), Leg.Hist. 1011-1012 (Rep. Randall); 116 Cong.Rec. 38393 (1970), Leg.Hist. 1050 (Rep. Michel); 116 Cong.Rec. 38394 (1970), Leg.Hist. 1052 (Rep. Broomfield); 116 Cong.Rec. 38704 (1970), Leg.Hist. 1062 (Rep. Sikes); 116 Cong.Rec. 38713 (1970), Leg.Hist. 1087 (Rep. Robison); 116 Cong.Rec. 42203 (1970), Leg.Hist. 1210 (Rep. Daniels). 37 See 116 Cong.Rec. 37346 (1970), Leg.Hist. 448 (Sen. Tower); H.R.Rep. 55-57, Leg.Hist. 885-887 (minority report); 116 Cong.Rec. 38393 (1970), Leg.Hist. 1050 (Rep. Michel). Some of these Members of Congress expressed particular fears over the possible pressures which might be brought to bear on an inspector during a strike.

67

445 U.S. 55 100 S.Ct. 915 63 L.Ed.2d 198 George Calvin LEWIS, Jr., Petitioner,v.UNITED STATES. No. 78-1595. Argued Jan. 7, 1980. Decided Feb. 27, 1980. Syllabus Held: Even though petitioner's extant prior state-court felony conviction may be subject to collateral attack under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, it could properly be used as a predicate for his subsequent conviction for possession of a firearm in violation of § 1202(a)(1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. Pp. 60-68. (a) The plain meaning of § 1202(a)(1)'s sweeping language proscribing the possession of firearms by any person who "has been convicted by a court of the United States or of a State . . . of a felony," is that the fact of a felony conviction imposes firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action. Other provisions of the statute demonstrate and reinforce its broad sweep, and there is nothing in § 1202(a)(1)'s legislative history to suggest that Congress was willing to allow a defendant to question the validity of his prior conviction as a defense to a charge under § 1202(a)(1). Moreover, the fact that there are remedies available to a convicted felon—removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding—suggests that Congress intended that the defendant clear his statusbefore obtaining a firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified as potentially irresponsible and dangerous. Pp. 60-65. (b) The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment, since Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. And use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by criminal sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109; United States v. Tucker, 404 U.S. 443; and Loper v. Beto, 405 U.S. 473. Pp. 65-67. 591 F. 2d 978, affirmed. BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and POWELL, JJ., joined, post, p. 68. Andrew W. Wood argued the cause for petitioner. With him on the briefs were Neal P. Rutledge. Andrew J. Levander argued the cause pro hac vice for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Jerome M. Feit, and Joel M. Gershowitz. Mr. JUSTICE BLACKMUN delivered the opinion of the Court. 1 This case presents the question whether a defendant's extant prior conviction, flawed because he was without counsel, as required by Gideon v. Wainwright, 372 U.S. 335 (1963), may constitute the predicate for a subsequent conviction under § 1202(a)(1), as amended, of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. App. § 1020(a)(1).1 2 * In 1961, petitioner George Calvin Lewis, Jr., upon his plea of guilty, was convicted in a Florida state court of a felony for breaking and entering with intent to commit a misdemeanor. See Fla. Stat. § 810.05 (1961). He served a term of imprisonment. That conviction has never been overturned, nor has petitioner ever received a qualifying pardon or permission from the Secretary of the Treasury to possess a firearm. See 18 U.S.C. App. § 1203(2) and 18 U.S.C. § 925(c). 3 In January 1977, Lewis, on probable cause, was arrested in Virginia, and later was charged by indictment with having knowingly received and possessed at that time a specified firearm, in violation of 18 U.S.C. App. § 1202(a)(1).2 He waived a jury and was given a bench trial. It was stipulated that the weapon in question had been shipped in interstate commerce. The Government introduced in evidence an exemplified copy of the judgment and sentence in the 1961 Florida felony proceeding. App. 10. 4 Shortly before the trial, petitioner's counsel informed the court that he had been advised that Lewis was not represented by counsel in the 1961 Florida proceeding.3 He claimed that under Gideon v. Wainwright, supra, a violation of § 1202 (a)(1) could not be predicated on a prior conviction obtained in violation of petitioner's Sixth and Fourteenth Amendment rights. The court rejected that claim, ruling that the constitutionality of the outstanding Florida conviction was immaterial with respect to petitioner's status under § 1202(a)(1) as a previously convicted felon at the time of his arrest. Petitioner, accordingly, offered no evidence as to whether in fact he had been convicted in 1961 without the aid of counsel. We therefore assume, for present purposes, that he was without counsel at that time. 5 On appeal, the United States Court of Appeals for the Fourth Circuit, by a divided vote, affirmed. 591 F.2d 978 (1979). It held that a defendant, purely as a defense to a prosecution under § 1202(a)(1), could not attack collaterally an outstanding prior felony conviction, and that the statutory prohibition applied irrespective of whether that prior conviction was subject to collateral attack. The Court of Appeals also rejected Lewis' constitutional argument to the effect that the use of the prior conviction as a predicate for his prosecution under § 1202(a)(1) violated his rights under the Fifth and Sixth Amendments. 6 Because of conflict among the Courts of Appeals,4 we granted certiorari. 422 U.S. 939 (1979). II 7 Four cases decided by this Court provide the focus for petitioner's attack upon his conviction. The first, and pivotal one, is Gideon v. Wainwright, supra, where the Court held that a state felony conviction without counsel, and without a valid waiver of counsel, was unconstitutional under the Sixth and Fourteenth Amendments. That ruling is fully retroactive. Kitchens v. Smith, 401 U.S. 847 (1971). 8 The second case is Burgett v. Texas, 389 U.S. 109 (1967). There the Court held that a conviction invalid under Gideon could not be used for enhancement of punishment under a State's recidivist statute. The third is United States v. Tucker, 404 U.S. 443 (1972), where it was held that such a conviction could not be considered by a court in sentencing a defendant after a subsequent conviction. And the fourth is Loper v. Beto, 405 U.S. 473 (1972), where the Court disallowed the use of the conviction to impeach the general credibility of the defendant. The prior conviction, the plurality opinion said, "lacked reliability." Id., at 484, quoting Linkletter v. Walker, 381 U.S. 618, 639, and n. 20 (1965). 9 We, of course, accept these rulings for purposes of the present case. Petitioner's position, however, is that the four cases require a reversal of his conviction under § 1202(a)(1) on both statutory and constitutional grounds. III 10 The Court has stated repeatedly of late that in any case concerning the interpretation of a statute the "starting point" must be the language of the statute itself. Reiter v. Sonotone Corp., 422 U.S. 330, 337 (1979). See also Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979); Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979). An examination of § 1202(a)(1) reveals that its proscription is directed unambiguously at any person who "has been convicted by a court of the United States or of a State ... of a felony." No modifier is present, and nothing suggests any restriction on the scope of the term "convicted." "Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack]." United States v. Culbert, 435 U.S. 371, 373 (1978); see United States v. Naftalin, 441 U.S. 768, 772 (1979). The statutory language is sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action, such as a qualifying pardon or a consent from the Secretary of the Treasury.5 The obvious breadth of the language may well reflect the expansive legislative approach revealed by Congress' express findings and declarations, in 18 U.S.C. App. § 1201,6 concerning the problem of firearm abuse by felons and certain specifically described persons. 11 Other provisions of the statute demonstrate and reinforce its broad sweep. Section 1203 enumerates exceptions to § 1202(a)(1) (a prison inmate who by reason of his duties has expressly been entrusted with a firearm by prison authority; a person who has been pardoned and who has expressly been authorized to receive, possess, or transport a firearm). In addition, § 1202(c)(2) defines "felony" to exclude certain state crimes punishable by no more than two years' imprisonment. No exception, however, is made for a person whose outstanding felony conviction ultimately might turn out to be invalid for any reason. On its face therefore, § 1202(a)(1) contains nothing by way of restrictive language. It thus stands in contrast with other federal statutes that explicitly permit a defendant to challenge, by way of defense, the validity or constitutionality of the predicate felony. See, e.g., 18 U.S.C. § 3575(e) (dangerous special offender) and 21 U.S.C. § 851(c)(2) (recidivism under the Comprehensive Drug Abuse Prevention and Control Act of 1970). 12 When we turn to the legislative history of § 1202(a)(1), we find nothing to suggest that Congress was willing to allow a defendant to question the validity of his prior conviction as a defense to a charge under § 1202(a)(1). The section was enacted as part of Title VII of the Omnibus Crime Control and Safe Streets Acts of 1968, 82 Stat. 236. It was added by way of a floor amendment to the Act and thus was not a subject of discussion in the legislative reports. See United States v. Batchelder, 422 U.S. 114, 120 (1979); Scarborough v. United States, 431 U.S. 563, 569-570 (1977); United States v. Bass, 404 U.S. 336, 344, and n. 11 (1971). What little legislative history there is that is relevant reflects an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a "valid" conviction, and not a conviction not subject to constitutional challenge, as the criterion. For example, the Senator observed: 13 "So, under title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and had been expressedly authorized by his pardon to possess a firearm." 114 Cong. Rec. 14773 (1968). 14 See also id., at 13868, 14774. Inasmuch as Senator Long was the sponsor and floor manager of the bill, his statements are entitled to weight. Simpson v. United States, 436 U.S. 6, 13 (1978). 15 It is not without significance, furthermore, that Title VII, as well as Title IV of the Omnibus Act, was enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960's. See, e.g., S. Rep. No. 1097, 90th Cong., 2d Sess., 76-78 (1968); H.R. Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 22-23 (1968). This Court, accordingly, has observed: 16 "The legislative history [of Title VII] in its entirety, while brief, further supports the view that Congress sought to rule broadly -- to keep guns out of the hands of those who have demonstrated that 'they may not be trusted to possess a firearm without becoming a threat to society.'" Scarborough v. United States, 431 U.S., at 572. 17 The legislative history, therefore, affords no basis for a loophole, by way of a collateral constitutional challenge, to the broad statutory scheme enacted by Congress. Section 1202(a) was a sweeping prophylaxis, in simple terms, against misuse of firearms. There is no indication of any intent to require the Government to prove the validity of the predicate conviction. 18 The very structure of the Omnibus Act's Title IV, enacted simultaneously with Title VII, reinforces this conclusion. Each Title prohibits categories of presumptively dangerous persons from transporting or receiving firearms. See 18 U.S.C. §§ 922(g) and (h). Actually, with regard to the statutory question at issue here, we detect little significant difference between Title IV and Title VII. Each seeks to keep a firearm away from "any person ... who has been convicted" of a felony, although the definition of "felony" differs somewhat in the respective statutes. But to limit the scope of §§ 922(g)(1) and (h)(1) to a validly convicted felon would be at odds with the statutory scheme as a whole. Those sections impose a disability not only on a convicted felon but also on a person under a felony indictment, even if that person subsequently is acquitted of the felony charge. Since the fact of a mere indictment is a disabling circumstance, a fortiori the much more significant fact of conviction must deprive the person of a right to a firearm. 19 Finally, it is important to note that a convicted felon is not without relief. As has been observed above, the Omnibus Act, in §§ 1203(2) and 925(c), states that the disability may be removed by a qualifying pardon or the Secretary's consent. Also, petitioner, before obtaining his firearm, could have challenged his prior conviction in an appropriate proceeding in the Florida state courts. See Fla. Const., Art. 5, § 5 (3); L'Hommedieu v. State, 362 So. 2d 72 (Fla. App. 1978); Weir v. State, 319 So. 2d 80 (Fla. App. 1975). See also United States v. Morgan, 346 U.S. 502 (1954).7 20 It seems fully apparent to us that the existence of these remedies, two of which are expressly contained in the Omnibus Act itself, suggests that Congress clearly intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose "broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous." Barrett v. United States, 423 U.S. 212, 218 (1976). 21 With the face of the statute and the legislative history so clear, petitioner's argument that the statute nevertheless should be construed so as to avoid a constitutional issue is inapposite. That course is appropriate only when the statute provides a fair alternative construction. This statute could not be more plain. Swain v. Pressley, 430 U.S. 372, 378, and n. 11 (1977); United States v. Batchelder, 442 U.S., at 122-123. Similarly, any principle of lenity, see Rewis v. United States, 401 U.S. 808, 812 (1971), has no application. The touchtsone of that principle is statutory ambiguity. Huddleston v. United States, 415 U.S. 814, 832 (1974); United States v. Batchelder, 442 U.S. at 121-122. There is no ambiguity here. 22 We therefore hold that § 1202(a)(1) prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds. IV 23 The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is "some 'rational basis' for the statutory distinctions made ... or ... they 'have some relevance to the purpose for which the classification is made.'" Marshall v. United States, 414 U.S. 417, 422 (1974), quoting from McGinnis v. Royster, 410 U.S. 263, 270 (1973), and Baxstrom v. Herold, 383 U.S. 107, 111 (1966). See Vance v. Bradley, 440 U.S. 93, 97 (1979).8 24 Section 1202(a)(1) clearly meets that test. Congress, as its expressed purpose in enacting Title VII reveals, 18 U.S.C. App. § 1201, was concerned that the receipt and possession of a firearm by a felon constitutes a threat, among other things, to the continued and effective operation of the Government of the United States. The legislative history of the gun control laws discloses Congress' worry about the easy availability of firearms, especially to those persons who pose a threat to community peace. And Congress focused on the nexus between violent crime and the possession of a firearm by any person with a criminal record. 114 Cong. Rec. 13220 (1968) (remarks of Sen. Tydings); id., at 16298 (remarks of Rep. Pollock). Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. See, e.g., United States v. Ransom, 515 F.2d 885, 891-892 (CA5 1975), cert. denied, 424 U.S. 944, 96 S.Ct. 1412, 47 L.Ed.2d 349 (1976). This Court has recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm. See Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (disenfranchisement); De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (proscription against holding office in a waterfront labor organization); Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (prohibition against the practice of medicine). 25 We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be used for certain purposes. See Burgett, Tucker, and Loper, all supra. The Court, however, has never suggested that an uncounseled conviction is invalid for all purposes. See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Loper v. Beto, 405 U.S., at 482, n. 11, 92 S.Ct., at 1019, n. 11 (plurality opinion). 26 Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction, is not inconsistent with Burgett, Tucker, and Loper. In each of those cases, this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. Congress' judgment that a convicted felon, even one whose conviction was allegedly uncounseled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational.9 Enforcement of that essentially civil disability through a criminal sanction does not "support guilt or enhance punishment," see Burgett, 389 U.S., at 115, 88 S.Ct., at 262, on the basis of a conviction that is unreliable when one considers Congress' broad purpose. Moreover, unlike the situation in Burgett, the sanction imposed by § 1202(a)(1) attaches immediately upon the defendant's first conviction. 27 Again, it is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm. We simply hold today that the firearms prosecution does not open the predicate conviction to a new form of collateral attack. See Note, Prior Convictions and the Gun Control Act of 1968, 76 Colum.L.Rev. 326, 338-339 (1976). Cf. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). 28 The judgment of the Court of Appeals is affirmed. 29 It is so ordered. 30 Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL and Mr. Justice POWELL join, dissenting. 31 In disagreement with every other Court of Appeals that has addressed the issue,1 the Court of Appeals for the Fourth Circuit, held, by a divided vote, that an uncounseled and hence unconstitutional felony conviction may form the predicate for conviction under § 1202(a)(1) of the Omnibus Crime Control and Safe Streets Act of 1968. Today the Court affirms that judgment, but by an analysis that cannot be squared with either the literal language of the statute or controlling decisions of this Court. I respectfully dissent. 32 * Two longstanding principles of statutory construction independently mandate reversal of petitioner's conviction. The first is the precept that "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). The Court has repeatedly reaffirmed this "rule of lenity." See, e. g., Simpson v. United States, 435 U.S. 6, 14, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978); United States v. Bass, 404 U.S. 336, 347-349, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971); Ladner v. United States, 358 U.S. 169, 177, 79 S.Ct. 209, 213, 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). Indeed, the principle that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity" has previously been invoked in interpreting the very provision at issue in this case. See United States v. Bass, supra. 33 The Court declines to apply this established rule of construction in this case because, in its view, "[t]here is no ambiguity here." Ante, at 65. In light of the gloss the Court places on the literal language of the statute, I find this to be a curious conclusion. By its own terms, § 1202(a)(1) reaches "[a]ny PERSON WHO . . . hAs been convicted . . . of a felony." the provision on its face admits of no exception to its sweeping proscription. Yet despite the absence of any qualifying phrase, the Court concedes—as it must—that the statute cannot be interpreted so as to include those persons whose predicate convictions have been vacated or reversed on appeal. Ante, at 60-61, and n. 5. 34 It thus appears that the plain words of § 1202(a)(1) are not so clear after all, and we therefore must determine the section's reach. Two alternative constructions are offered: The first is the Government's—that § 1202(a)(1) may be read to permit only outstanding felony convictions to serve as the basis for prosecution. Tr. of Oral Arg. 29-30. The second is petitioner's that the predicate conviction must be not only outstanding, but also constitutionally valid. Because either interpretation fairly comports with the statutory language, surely the principle of lenity requires us to resolve any doubts against the harsher alternative and to read the statute to prohibit the possession of firearms only by those who have been constitutionally convicted of a felony. 35 The Court nevertheless adopts the Government's construction, relying on a supposed legislative resolve to enact a sweeping measure against the misuse of firearms. But however expansive § 1202 was meant to be, we are not faithful to "our duty to protect the rights of the individual," Dalia v. United States, 441 U.S. 238, 263, 99 S.Ct. 1682, 1696, 60 L.Ed.2d 156 (1979) (STEVENS, J., dissenting), when we are so quick to ascribe to Congress the intent to punish the possession of a firearm by a person whose predicate felony conviction was obtained in violation of the right to the assistance of counsel, "one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty." Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). Petitioner has once already been imprisoned in violation of the Constitution. In the absence of any clear congressional expression of its intent, I cannot accept a construction of § 1202(a)(1) that reflects such an indifference to petitioner's plight and such a derogation of the principles of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).2 II 36 The second maxim of statutory construction that compels a narrow reading of § 1202(a)(1) is the "cardinal principle" that "if a serious doubt of constitutionality is raised, . . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). Accord, Schneider v. Smith, 390 U.S. 17, 26, 88 S.Ct. 682, 687, 19 L.Ed.2d 799 (1968); United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543-545, 97 L.Ed. 770 (1953); United States v. CIO, 335 U.S. 106, 120-121, and n. 20, 68 S.Ct. 1349, 1356, 92 L.Ed. 1849 (1948). And doubts as to the constitutionality of a statute that could predicate criminal liability solely on the existence of a previous uncounseled felony conviction are indeed serious, for a trilogy of this Court's decisions would seem to prohibit precisely such a result. 37 Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), held that a prior uncounseled felony conviction was void and thus inadmissible in a prosecution under a Texas recidivist statute. Burgett stated: "To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right." Id., at 115, 88 S.Ct., at 262 (citation omitted). United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), respectively prohibited the use of uncounseled felony convictions as a factor to be considered in sentencing, and to impeach the defendant's credibility. 38 Burgett and its progeny appear to control the result in this case. The clear teaching of those decisions is that an uncounseled felony conviction can never be used "to support guilt or enhance punishment for another offense." Here, petitioner could have not been tried and convicted for violating § 1202(a)(1) in the absence of his previous felony conviction. It could not be plainer that his constitutionally void conviction was therefore used "to support guilt" for the current offense. The Court's bald assertion to the contrary is simply inexplicable. 39 The Court's attempt to distinguish Burgett, Tucker, and Loper on the ground that the validity of the subsequent convictions or sentences in those cases depended on the reliability of the prior uncounseled felony convictions, while in the present case the law focuses on the mere fact of the prior conviction, is unconvincing. The fundamental rationale behind those decisions was the concern that according any credibility to an uncounseled felony conviction would seriously erode the protections of the Sixth Amendment. Congress' decision to include convicted felons within the class of persons prohibited from possessing firearms can rationally be supported only if the historical fact of conviction is indeed a reliable indicator of potential dangerousness. As we have so often said, denial of the right to counsel impeaches "the very integrity of the fact-finding process." Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965). Accord, Lakeside v. Oregon, 435 U.S. 333, 341, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319 (1978); Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S.Ct. 2006, 2009, 32 L.Ed.2d 530 (1972). And the absence of counsel impairs the reliability of a felony conviction just as much when used to prove potential dangerousness as when used as direct proof of guilt. Cf. Loper v. Beto, supra, 405 U.S., at 483, 92 S.Ct., at 1019 (opinion of STEWART, J.). III 40 Finally, it is simply irrelevant that petitioner could have challenged the validity of his prior conviction in appropriate proceedings in the state courts. Nor can the existence of such a remedy prohibit him from raising the unconstitutionality of that conviction as a defense to the present charge. In the first place, neither Burgett nor Loper imposed any requirement that a defendant collaterally attack his uncounseled conviction before he faces prosecution under § 1202(a)(1); in both cases the Court held the use of the prior invalid convictions impermissible even though the defendants had taken no affirmative steps to have them overturned. More to the point, however, where the very defect in the initial proceedings was that the accused did not have the assistance of counsel in defending the felony charges against him, it simply defies reason and sensibility to suggest that the defendant must be regarded as having waived his defense to the § 1202(a)(1) prosecution because he failed first to retain counsel to seek an extraordinary writ of coram nobis. 1 Section 1202(a) reads in full: "Any person who-- "(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or "(2)" has been discharged from the Armed Forces under dishonorable conditions, or "(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or "(4) having been a citizen of the United States has renounced his citizenship, or "(5) being an alien is illegally or unlawfully in the United States, "and who receives, possess, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both." 2 The indictment also charged petitioner with a violation of 18 U.S.C. § 822(h)(1). That statute reads in pertinent part: "It shall be unlawful for any person -- "(1) who is under indictment for, or who has bene convicted in court of, a crime punishable by imprisonment for a term exceeding one year; . . . . . "to receive any firearm ... which has been shipped or transported in interstate ... commerce." Petitioner was acquitted on the § 822(h)(1) charge and it is not before us here. 3 Petitioner's counsel stated that a Florida attorney had advised him that the court records in that State showed affirmatively that Lewis had no lawyer. He noted also that Lewis had been charged with the same offense as had the defendant in Gideon v. Wainwright, 372 U.S. 335 (1963), and that petitioner had been tried in the same State about six months before Gideon was tried. App. 2-3. 4 Compare United States v. Lufman, 457 F.2d 165 (CA7 1972) (use of an underlying felony conviction unconstitutionally obtained to support a conviction under § 1202(a)(1) is reversible error), with the Fourth Circuit's ruling in the present case, and with United States v. Maggard, 573 F.2d 926 (CA6 1978); and United States v. Graves, 554 F.2d 65 (CA3 1977) (en banc) (claim of constitutional error in the underlying conviction may not be raised). The Ninth Circuit has distinguished between a claim of constitutional invalidity in the underlying conviction, which it has held may be raised, and a claim that the underlying conviction has been, or should be, reversed on other grounds. Compare United States v. O'Neal, 545 F.2d 85 (1976), and United States v. Pricepaul, 540 F.2d 417 (1976), with United States v. Liles, 432 F.2d 18 (1970). See also United States v. Herrell, 588 F.2d 711 (CA9 1978), cert. denied, 440 U.S. 964 (1979) (underlying conviction in a prosecution under 18 U.S.C. § 922(h)(1) may not be challenged on nonconstitutional grounds). The identical issue that is presented in this case has also arisen in the context of challenges to convictions under 18 U.S.C. § 922(g)(1) (proscribing shipping or transport of a firearm in interstate or foreign commerce by a person under indictment for, or convicted of, a felony) and § 922(h)(1) (proscribing receipt of a firearm shipped in interstate or foreign commerce by such a person). Compare United States v. Scales, 599 F.2d 78 (CA5 1979); Dameron v. United States, 488 F.2d 724 (CA5 1974); Pasterchik v. United States, 466 F.2d 1367 (CA9 1972); and United States v. DuShane, 435 F.2d 187 (CA2 1970) (underlying conviction may be attacked as unconstitutional), with Barker v. United States, 579 F.2d 1219, 1226 (CA10 1978) (underlying conviction may not be so challenged in prosecution under § 922(h)(1)). The Courts of Appeals have treated the issue somewhat differently in prosecutions under 18 U.S.C. § 922(a)(6) (prohibiting the falsification of one's status as a convicted felon in purchasing a firearm). Nonuniformity has prevailed nonetheless on the question whether a defendant charged with violating that statute may challenge the constitutionality of the underlying felony conviction. Compare United States v. O'Neal, supra, and United States v. Pricepaul, supra (permitting the challenge), with United States v. Allen, 556 F.2d 720 (CA4 1977); United States v. Graves, supra; and Cassity v. United States, 521 F.2d 1320 (CA6 1975) (holding that the challenge may not be made). The Eighth Circuit has stated that it will not permit a challenge to the constitutionality of the underlying conviction where the defendant is charged under § 922(a)(6), while reserving the question under § 1292(a)(1) and §§ 922(g)(1) and (h)(1). United States v. Edwards, 568 F.2d, at 83-88 (Garth, J., and Seitz, C.J., concurring in part and dissenting in part)(the Government need not prove the validity of the underlying conviction in a prosecution brought under § 922(a)(6), but it must do so in prosecution under § 1202(a)(1)). 5 One might argue, of course, that the language is so sweeping that it includes in its proscription even a person whose predicate conviction in the interim had been finally reversed on appeal and thus no longer was outstanding. The Government, however does not go so far, Tr. of Oral Arg. 29-30, 37-40, and though we have no need to pursue that extreme argument in this case, we reject it. We are not persuaded that the mere possibility of making that argument renders the statute, as petitioner suggests, unconstitutionally vague. And unlike the dissent, post, at 69, we view the language Congress chose as consistent with the common-sense notion that a disability based upon one's status as a convicted felon should cease only when the conviction upon which that status depends has been vacated. We note, nonetheless, that the disability effected by § 1202(a)(1) would apply while a felony conviction was pending on appeal. See Note, Prior Convictions and the Gun Control Act of 1968, 76 Colum. L. Rev. 326, 334, and n. 42 (1976). 6 "The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship, constitutes -- "(1) a burden on commerce or threat affecting the free flow of commerce, "(2) a threat to the safety of the President of the United States and Vice President of the United States, "(3) an impediment or threat to the exercise of free speech and the free exercise of a religion guaranteed by the first amendment to the Constitution of the United States, and "(4) a threat to the continued and effective operation of the Government of the United States and of the government of each State guaranteed by article IV of the Constitution." 7 This being so, § 1202(a)(1) does not attach "what may amount to life-long sanctions to a mere finding of probable cause," as has been argued by one commentator. See Comment, 92 Harv. L. Rev., 1790, 1795 (1979). 8 These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, no do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the 9 The dissent's assertion that Congress' judgment in this regard cannot rationally be supported, post, at 72, is one we do not share. Moreover, such an assertion seems plainly inconsistent with the deference that a reviewing court should give to a legislative determination that, in essence, predicts a potential for future criminal behavior. 1 See, e. g., Dameron v. United States, 488 F.2d 724 (CA5 1974); United States v. Lufman, 457 F.2d 165 (CA7 1972); United States v. DuShane, 435 F.2d 187 (CA2 1970); United States v. Thoresen, 428 F.2d 654 (CA9 1970). See generally Comment, 92 Harv.L.Rev. 1790 (1979). 2 As the Court has previously observed, § 1202 "was hastily passed, with little discussion, no hearings, and no report." United States v. Bass, 404 U.S. 336, 344, 92 S.Ct. 515, 520, 30 L.Ed.2d 488 (1971). "In short, 'the legislative history of [the] Act hardly speaks with that clarity of purpose which Congress supposedly furnishes courts in order to enable them to enforce its true will.' " Id., at 346, 92 S.Ct., at 522 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 483, 71 S.Ct. 456, 462, 95 L.Ed. 456 (1951)). It is thus little wonder that the Court finds no explicit support in the statute's legislative history for petitioner's construction. Nor do the few signposts that do exist in the history and structure of Title VII point unambiguously to the Court's conclusion. That Congress included provisions within the Omnibus Act whereby a convicted felon could have his disability removed by a qualifying pardon or the Secretary's consent, see §§ 1203(2) and 925(c), does not mean that Congress intended them to be exclusive remedies. Indeed, these provisions were clearly designed only to provide a mechanism for those persons with valid felony convictions to seek relief from the prohibitions of § 1202. Similarly, a comparison between the scope of Title IV and Title VII is unenlightening on the question before us. Simply because the former title imposes a disability on any person under a felony indictment, it by no means follows, a fortiori or otherwise, that Congress intended by the latter title to impose a somewhat harsher disability on those persons with unconstitutional felony convictions. Cf. ante, at 64. Significantly, the restrictions attaching to an individual under indictment are necessarily temporary, while those imposed on the basis of a previous conviction are indefinite in duration. Moreover, Congress' failure to include persons "under indictment" within the proscriptions of § 1202 more plausibly signals its desire to demand a greater indication of potential dangerousness then would be provided by the mere fact of indictment—or, for that matter, by an uncounseled felony conviction. In fact, in a slightly different context, Congress has expressly rejected the proposition that an invalid prior conviction is a reliable indicator of "dangerousness." See 18 U.S.C. § 3575(e) (dangerous special offender).

01

445 U.S. 40 100 S.Ct. 906 63 L.Ed.2d 186 Otis TRAMMEL, Jr., Petitioner,v.UNITED STATES. No. 78-5705. Argued Oct. 29, 30, 1979. Decided Feb. 27, 1980. Syllabus Prior to his trial with others on federal drug charges, petitioner advised the District Court that the Government intended to call his wife (who had been named in the indictment as an unindicted co-conspirator) as an adverse witness and asserted a privilege to prevent her from testifying. The District Court ruled that confidential communications between petitioner and his wife were privileged and therefore inadmissible, but the wife was permitted to testify to any act she observed before or during the marriage and to any communication made in the presence of a third person. Primarily on the basis of his wife's testimony, petitioner was convicted, and the Court of Appeals affirmed, rejecting petitioner's contention that the admission of his wife's adverse testimony, over his objection, contravened the decision in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125, barring the testimony of one spouse against the other unless both consent. Held : The Court modifies the Hawkins rule so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. Here, petitioner's spouse chose to testify against him; that she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary, and thus petitioner's claim of privilege was properly rejected. Pp. 43-53. (a) The modern justification for the privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. While this Court, in Hawkins, supra, reaffirmed the vitality of the common-law privilege in the federal courts, it made clear that its decision was not meant to "foreclose whatever changes in the rule may eventually be dictated by 'reason and experience.' " 358 U.S., at 79, 79 S.Ct., at 139. Pp. 43-46. (b) Rule 501 of the Federal Rules of Evidence acknowledges the federal courts' authority to continue the evolutionary development of testimonial privileges in federal criminal trials "governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience." P. 47. (c) Since 1958, when Hawkins was decided, the trend in state law has been toward divesting the accused of the privilege to bar adverse spousal testimony. Pp. 48-50. (d) Information privately disclosed between husband and wife in the confidence of the marital relationship is privileged under the independent rule protecting confidential marital communications, Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306; and the Hawkins privilege, which sweeps more broadly than any other testimonial privilege, is not limited to confidential communications but is invoked to also exclude evidence of criminal acts and of communications in the presence of third persons. The ancient foundations for so sweeping a privilege—whereby a woman was regarded as a chattel and denied a separate legal identity—have long since disappeared, and the contemporary justification for affording an accused such a privilege is unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding—whatever the motivation there is probably little in the way of marital harmony for the privilege to preserve. Consideration of the foundations for the privilege and its history thus shows that "reason and experience" no longer justify so sweeping a rule as that found acceptable in Hawkins. Pp. 50-53. 583 P.2d 1166, affirmed. Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for respondent. J. Terry Wiggins, Denver, Colo., for petitioner. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife. 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 (1979). This calls for a re-examination of Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958). 2 * On March 10, 1976, petitioner Otis Trammel was indicted with two others, Edwin Lee Roberts and Joseph Freeman, for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U.S.C. §§ 952(a), 962(a), and 963. The indictment also named six unindicted co-conspirators, including petitioner's wife Elizabeth Ann Trammel. 3 According to the indictment, petitioner and his wife flew from the Philippines to California in August 1975, carrying with them a quantity of heroin. Freeman and Roberts assisted them in its distribution. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug. On November 3, 1975, with four ounces of heroin on her person, she boarded a plane for the United States. During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested. After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government. 4 Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity. She testified that she and petitioner were married in May 1975 and that they remained married.1 She explained that her cooperation with the Government was based on assurances that she would be given lenient treatment.2 She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy. 5 After hearing this testimony, the District Court ruled that Mrs. Trammel could testify in support of the Government's case to any act she observed during the marriage and to any communication "made in the presence of a third person"; however, confidential communications between petitioner and his wife were held to be privileged and inadmissible. The motion to sever was denied. 6 At trial, Elizabeth Trammel testified within the limits of the court's pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(b).3 7 In the Court of Appeals petitioner's only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court's teaching in Hawkins v. United States, supra, and therefore constituted reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit "the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her testimony." 583 F.2d 1166, 1168 (CA10 1978). II 8 The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that "it hath beene resolved by the Justices that a wife cannot be produced either against or for her husband." 1 E. Coke, A Commentarie upon Littleton 6b (1628). See, generally, 8 J. Wigmore, Evidence § 2227 (McNaughton rev. 1961). This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife. 9 Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century. See id., § 2333. It was applied by this Court in Stein v. Bowman, 13 Pet. 209, 220-223, 10 L.Ed. 129 (1839), in Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), and again in Jin Fuey Moy v. United States, 254 U.S. 189, 195, 41 S.Ct. 98, 101, 65 L.Ed. 214 (1920), where it was deemed so well established a proposition as to "hardly requir[e] mention." Indeed, it was not until 1933, in Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in the defendant's behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. Id., at 373, 54 S.Ct., at 212. The rule thus evolved into one of privilege rather than one of absolute disqualification. See J. Maguire, Evidence, Common Sense and Common Law 78-92 (1947). 10 The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. Notwithstanding this benign purpose, the rule was sharply criticized.4 Professor Wigmore termed it "the merest anachronism in legal theory and an indefensible obstruction to truth in practice." 8 Wigmore § 2228, at 221. The Committee on Improvements in the Law of Evidence of the American Bar Association called for its abolition. 63 American Bar Association Reports 594-595 (1938). In its place, Wigmore and others suggested a privilege protecting only private marital communications, modeled on the privilege between priest and penitent, attorney and client, and physician and patient. See 8 Wigmore § 2332 et seq.5 11 These criticisms influenced the American Law Institute, which, in its 1942 Model Code of Evidence advocated a privilege for marital confidences, but expressly rejected a rule vesting in the defendant the right to exclude all adverse testimony of his spouse. See American Law Institute, Model Code of Evidence, Rule 215 (1942). In 1953 the Uniform Rules of Evidence, drafted by the National Conference of Commissioners on Uniform State Laws, followed a similar course; it limited the privilege to confidential communications and "abolishe[d] the rule, still existing in some states, and largely a sentimental relic, of not requiring one spouse to testify against the other in a criminal action." See Rule 23(2) and comments. Several state legislatures enacted similarly patterned provisions into law.6 12 In Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), this Court considered the continued vitality of the privilege against adverse spousal testimony in the federal courts. There the District Court had permitted petitioner's wife, over his objection, to testify against him. With one questioning concurring opinion, the Court held the wife's testimony inadmissible; it took note of the critical comments that the common-law rule had engendered, id., at 76, and n. 4, 79 S.Ct., at 137, but chose not to abandon it. Also rejected was the Government's suggestion that the Court modify the privilege by vesting it in the witness-spouse, with freedom to testify or not independent of the defendant's control. The Court viewed this proposed modification as antithetical to the widespread belief, evidenced in the rules then in effect in a majority of the States and in England, "that the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences." Id., at 79, 79 S.Ct., at 139. 13 Hawkins, then, left the federal privilege for adverse spousal testimony where it found it, continuing "a rule which bars the testimony of one spouse against the other unless both consent." Id., at 78, 79 S.Ct., at 138. Accord, Wyatt v. United States, 362 U.S. 525, 528, 80 S.Ct. 901, 903, 4 L.Ed.2d 931 (1960).7 However, in so doing, the Court made clear that its decision was not meant to "foreclose whatever changes in the rule may eventually be dictated by 'reason and experience.' " 358 U.S., at 79, 79 S.Ct., at 139. III A. 14 The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials "governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience." Fed.Rule Evid. 501. Cf. Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 78 L.Ed. 617 (1934). The general mandate of Rule 501 was substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. That proposal defined nine specific privileges, including a husband-wife privilege which would have codified theHawkins rule and eliminated the privilege for confidential marital communications. See proposed Fed.Rule Evid. 505. In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to "provide the courts with the flexibility to develop rules of privilege on a case-by-case basis," 120 Cong.Rec. 40891 (1974) (statement of Rep. Hungate), and to leave the door open to change. See also S.Rep.No.93-1277, p. 11 (1974); H.R.Rep.No.93-650, p. 8 (1973),8 U.S.Code Cong. & Admin.News 1974, p. 7051. 15 Although Rule 501 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins rule, the long history of the privilege suggests that it ought not to be casually cast aside. That the privilege is one affecting marriage, home, and family relationships—already subject to much erosion in our day—also counsels caution. At the same time, we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change. This was recognized in Funk where the Court "decline[d] to enforce . . . ancient rule[s] of the common law under conditions as they now exist." 290 U.S., at 382, 54 S.Ct., at 215. For, as Mr. Justice Black admonished in another setting, "[w]hen precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule's creator to destroy it." Francis v. Southern Pacific Co., 333 U.S. 445, 471, 68 S.Ct. 611, 623, 92 L.Ed. 798 (1948) (dissenting opinion). B 16 Since 1958, when Hawkins was decided, support for the privilege against adverse spousal testimony has been eroded further. Thirty-one jurisdictions, including Alaska and Hawaii, then allowed an accused a privilege to prevent adverse spousal testimony. 358 U.S., at 81, n. 3, 79 S.Ct., at 140 (STEWART, J., concurring). The number has now declined to 24.9 In 1974, the National Conference on Uniform State Laws revised its Uniform Rules of Evidence, but again rejected the Hawkins rule in favor of a limited privilege for confidential communications. See Uniform Rules of Evidence, Rule 504. That proposed rule has been enacted in Arkansas, North Dakota, and Oklahoma—each of which in 1958 permitted an accused to exclude adverse spousal testimony.10 The trend in state law toward divesting the accused of the privilege to bar adverse spousal testimony has special relevance because the laws of marriage and domestic relations are concerns traditionally reserved to the states. See Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). Scholarly criticism of the Hawkins rule has also continued unabated.11 C 17 Testimonial exclusionary rules and privileges contravene the fundamental principle that " 'the public . . . has a right to every man's evidence.' " United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). As such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting). Accord, United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108-3109, 41 L.Ed.2d 1039 (1974). Here we must decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice. 18 It is essential to remember that the Hawkins privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship—once described by this Court as "the best solace of human existence." Stein v. Bowman, 13 Pet., at 223. Those confidences are privileged under the independent rule protecting confidential marital communications. Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); see n. 5, supra. The Hawkins privilege is invoked, not to exclude private marital communications, but rather to exclude evidence of criminal acts and of communications made in the presence of third persons. 19 No other testimonial privilege sweeps so broadly. The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out. Similarly, the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment. 20 The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making "every man's house his castle," and permits a person to convert his house into "a den of thieves." 5 Rationale of Judicial Evidence 340 (1827). It "secures, to every man, one safe and unquestionable and every ready accomplice for every imaginable crime." Id., at 338. 21 The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world—indeed in any modern society—is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside so that "[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas." Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975). 22 The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding—whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace.12 Indeed, there is reason to believe that vesting the privilege in the accused could actually undermine the marital relationship. For example, in a case such as this the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her husband can prevent her from giving adverse testimony. If the Government is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband's control over her testimony. IV 23 Our consideration of the foundations for the privilege and its history satisfy us that "reason and experience" no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification—vesting the privilege in the witness-spouse—furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. 24 Here, petitioner's spouse chose to testify against him. That she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary. Cf. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Accordingly, the District Court and the Court of Appeals were correct in rejecting petitioner's claim of privilege, and the judgment of the Court of Appeals is 25 Affirmed. 26 Mr. Justice STEWART, concurring in the judgment. 27 Although agreeing with much of what the Court has to say, I cannot join an opinion that implies that "reason and experience" have worked a vast change since the Hawkins case was decided in 1958. In that case the Court upheld the privilege of a defendant in a criminal case to prevent adverse spousal testimony, in an all-but-unanimous opinion by Mr. Justice Black. Today the Court, in another all-but-unanimous opinion, obliterates that privilege because of the purported change in perception that "reason and experience" have wrought. 28 The fact of the matter is that the Court in this case simply accepts the very same arguments that the Court rejected when the Government first made them in the Hawkins case in 1958. I thought those arguments were valid then,1 and I think so now. 29 The Court is correct when it says that "[t]he ancient foundations for so sweeping a privilege have long since disappeared." Ante, at 52. But those foundations had disappeared well before 1958; their disappearance certainly did not occur in the few years that have elapsed between the Hawkins decision and this one. To paraphrase what Mr. Justice Jackson once said in another context, there is reason to believe that today's opinion of the Court will be of greater interest to students of human psychology than to students of law.2 1 In response to the question whether divorce was contemplated, Mrs. Trammel testified that her husband had said that "I would go my way and he would go his." App. 27. 2 The Government represents to the Court that Elizabeth Trammel has not been prosecuted for her role in the conspiracy. 3 Roberts and Freeman were also convicted. Roberts was sentenced to two years' imprisonment. Freeman received an indeterminate sentence under the Youth Corrections Act. 4 See Brosman, Edward Livingston and Spousal Testimony in Louisiana, 11 Tulane L.Rev. 243 (1937); Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn.L.Rev. 675 (1929); Note, 24 Calif.L.Rev. 472 (1936); Note, 35 Mich.L.Rev. 329 (1936); Note, 10 So.Cal.L.Rev. 94 (1936); Note, 20 Minn.L.Rev. 693 (1936). 5 This Court recognized just such a confidential marital communications privilege in Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934), and in Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951). In neither case, however, did the Court adopt the Wigmore view that the communications privilege be substituted in place of the privilege against adverse spousal testimony. The privilege as to confidential marital communications is not at issue in the instant case; accordingly, our holding today does not disturb Wolfle and Blau. 6 See Note, Competency of One Spouse to Testify Against the Other in Criminal Cases Where the Testimony Does Not Relate to Confidential Communications: Modern Trend, 38 Va.L.Rev. 359 (1952). 7 The decision in Wyatt recognized an exception to Hawkins for cases in which one spouse commits a crime against the other. 362 U.S., at 526, 80 S.Ct., at 902. This exception, placed on the ground of necessity, was a longstanding one at common law. See Lord Audley's Case, 123 Eng.Rep. 1140 (1631); 8 Wigmore § 2239. It has been expanded since then to include crimes against the spouse's property, see Herman v. United States, 220 F.2d 219, 226 (CA4 1955), and in recent years crimes against children of either spouse, United States v. Allery, 526 F.2d 1362 (CA8 1975). Similar exceptions have been found to the confidential marital communications privilege. See 8 Wigmore § 2338. 8 Petitioner's reliance on 28 U.S.C. § 2076 for the proposition that this Court is without power to reconsider Hawkins is ill-founded. That provision limits this Court's statutory rulemaking authority by providing that rules "creating, abolishing, or modifying a privilege shall have no force or effect unless . . . approved by act of Congress." It was enacted principally to insure that state rules of privilege would apply in diversity jurisdiction cases unless Congress authorized otherwise. In Rule 501 Congress makes clear that § 2076 was not intended to prevent the federal courts from developing testimonial privilege law in federal criminal cases on a case-by-case basis "in light of reason and experience"; indeed Congress encouraged such development. 9 Eight States provide that one spouse is incompetent to testify against the other in a criminal proceeding: see Haw.Rev.Stat. § 621-18 (1976); Iowa Code § 622.7 (1979); Miss.Code Ann. § 13-1-5 (Supp.1979); N.C.Gen.Stat. § 8-57 (Supp.1977); Ohio Rev.Code Ann. § 2945.42 (Supp.1979); Pa.Stat.Ann., Tit. 42, §§ 5913, 5915 (Purdon Supp.1979); Tex.Crim.Proc.Code Ann. Art. 38.11 (Vernon 1979); Wyo.Stat. § 1-12-104 (1977). Sixteen States provide a privilege against adverse spousal testimony and vest the privilege in both spouses or in the defendant-spouse alone: see Alaska Crim.Proc.Rule 26(b)(2); Colo.Rev.Stat. § 13-90-107 (1973); Idaho Code § 9-203 (Supp.1979); Mich.Comp.Laws § 600.2162 (Mich.Stat.Ann. § 27A.2162) (1968); Minn.Stat. § 595.02 (1978); Mo.Rev.Stat. § 546.260 (1978); Mont.Code Ann. § 46-16-212 (1979); Neb.Rev.Stat. § 27-505 (1975); Nev.Rev.Stat. § 49.295 (1977); N.J.Stat.Ann. § 2A:84A-17 (West 1976); N.M.Stat.Ann. § 20-4-505 (Supp.1977); Ore.Rev.Stat. § 44.040 (1977); Utah Code Ann. § 78-24-8 (1977); Va.Code § 19.2-271.2 (Supp.1979); Wash.Rev.Code § 5.60.060 (Supp.1979); W.Va.Code § 57-3-3 (1966). Nine States entitle the witness-spouse alone to assert a privilege against adverse spousal testimony: see Ala.Code § 12-21-227 (1975); Cal.Evid.Code Ann. §§ 970-973 (West 1966 and Supp.1979); Conn.Gen.Stat. § 54-84 (1979); Ga.Code § 38-1604 (1978); Ky.Rev.Stat. § 421.210 (Supp.1978); La.Rev.Stat.Ann. § 15:461 (West 1967); Md.Cts. & Jud.Proc.Code Ann. §§ 9-101, 9-106 (1974); Mass.Gen.Laws Ann., ch. 233, § 20 (West Supp.1979); R.I.Gen.Laws § 12-17-10 (1970). The remaining 17 States have abolished the privilege in criminal cases: see Ariz.Rev.Stat.Ann. § 12-2231 (Supp.1978); Ark.Stat.Ann. § 28-101, Rules 501 and 504 (1979); Del.Code Ann., Tit. 11, § 3502 (1975); Fla.Stat. §§ 90.501, 90.504 (1979); Ill.Rev.Stat., ch. 38, § 155-1 (1977); Ind.Code §§ 34-1-14-4, 34-1-14-5 (1976); Kan.Stat.Ann. §§ 60-407, 60-428 (1976); Maine Rules of Evidence 501, 504; N.H.Rev.Stat.Ann. § 516:27 (1974); N.Y.Crim.Proc.Law § 60.10 (McKinney 1971); N.Y.Civ.Proc.Law §§ 4502, 4512 (McKinney 1963); N.D.Rules of Evidence 501, 504; Okla.Stat., Tit. 12, §§ 2103, 2501, 2504 (West Supp.1979); S.C.Code § 19-11-30 (1976); S.D.Comp.Laws Ann. §§ 19-13-1, 19-13-12 to 19-13-15 (1979); Tenn.Code Ann. § 40-2404 (1975); Vt.Stat.Ann., Tit. 12, § 1605 (1973); Wis.Stat. §§ 905.01, 905.05 (1975). In 1901, Congress enacted a rule of evidence for the District of Columbia that made husband and wife "competent but not compellable to testify for or against each other," except as to confidential communications. This provision, which vests the privilege against adverse spousal testimony in the witness-spouse, remains in effect. See 31 Stat. 1358, §§ 1068, 1069, recodified as D.C.Code § 14-306 (1973). 10 In 1965, California took the privilege from the defendant-spouse and vested it in the witness-spouse, accepting a study commission recommendation that the "latter [was] more likely than the former to determine whether or not to claim the privilege on the basis of the probable effect on the marital relationship." See Cal.Evid.Code Ann. §§ 970-973 (West 1966 and Supp.1979) and 1 California Law Revision Commission, Recommendation and Study relating to The Marital "For and Against" Testimonial Privilege at F-5 (1956). See also 6 California Law Revision Commission, Tentative Privileges Recommendation—Rule 27.5, pp. 243-244 (1964). Support for the common-law rule has also diminished in England. In 1972, a study group there proposed giving the privilege to the witness-spouse, on the ground that "if [the wife] is willing to give evidence . . . the law would be showing excessive concern for the preservation of marital harmony if it were to say that she must not do so." Criminal Law Revision Committee, Eleventh Report, Evidence (General) 93. 11 See Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 Calif.L.Rev. 1353, 1384-1385 (1973); Orfield, The Husband-Wife Privileges in Federal Criminal Procedure, 24 Ohio St.L.J. 144 (1963); Rothstein, A Re-evaluation of the Privilege Against Adverse Spousal Testimony in the Light of its Purpose, 12 Int'l and Comp.L.Q. 1189 (1963); Note, 1977 Ariz.St.L.J. 411; Comment, 17 St. Louis L.J. 107 (1972); Comment, 15 Wayne L.Rev. 1287, 1334-1337 (1969); Comment, 52 J.Crim.L. 74 (1961); Note, 56 Nw.U.L.Rev. 208 (1961); Note, 32 Temp.L.Q. 351 (1959); Note, 33 Tulane L.Rev. 884 (1959). 12 It is argued that abolishing the privilege will permit the Government to come between husband and wife, pitting one against the other. That, too, misses the mark. Neither Hawkins, nor any other privilege, prevents the Government from enlisting one spouse to give information concerning the other or to aid in the other's apprehension. It is only the spouse's testimony in the courtroom that is prohibited. 1 "The rule of evidence we are here asked to re-examine has been called a 'sentimental relic.' It was born of two concepts long since rejected: that a criminal defendant was incompetent to testify in his own case, and that in law husband and wife were one. What thus began as a disqualification of either spouse from testifying at all yielded gradually to the policy of admitting all relevant evidence, until it has now become simply a privilege of the criminal defendant to prevent his spouse from testifying against him. "Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice. When such a rule is the product of a conceptualism long ago discarded, is universally criticized by scholars, and has been qualified or abandoned in many jurisdictions, it should receive the most careful scrutiny. Surely 'reason and experience' require that we do more than indulge in mere assumptions, perhaps naive assumptions, as to the importance of this ancient rule to the interests of domestic tranquillity." Hawkins v. United States, 358 U.S. 74, 81-82, 79 S.Ct. 136, 140, 3 L.Ed.2d 125 (concurring opinion) (citations and footnotes omitted). 2 See Zorach v. Clauson, 343 U.S. 306, 325, 72 S.Ct. 679, 689, 96 L.Ed. 954 (dissenting opinion).

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445 U.S. 169 100 S.Ct. 977 63 L.Ed.2d 293 Peter H. FORSHAM et al., Petitioners,v.Patricia Roberts HARRIS, Secretary Department of Health, Education, and Welfare, et al. No. 78-1118. Argued Oct. 31, 1979. Decided March 3, 1980. Syllabus Under federal grants awarded by the National Institute of Arthritis, Metabolism, and Digestive Diseases (NIAMDD) (a federal agency), the University Group Diabetes Program (UGDP), a group of private physicians and scientists, conducted a long-term study of the effectiveness of certain diabetes treatment regimens. Pertinent federal regulations authorized some supervision of UGDP and gave NIAMDD the right of access to, or permanent custody of, the raw data generated by UGDP. However, the day-to-day administration of grant-supported activities was in UGDP's hands, and NIAMDD did not exercise its right to review or obtain custody of the raw data, which remained at all times in UGDP's possession and under its ownership. The UGDP's reports on the results of its study, indicating that the use of certain drugs in diabetes treatment increased the risk of heart disease, ultimately resulted in proceedings by the Secretary of Health, Education, and Welfare (HEW) and the Food and Drug Administration (FDA) to restrict the labeling and use of the drugs. After both UGDP and HEW denied petitioners' request for access to the UGDP raw data underlying its published reports, petitioners filed suit in Federal District Court to require HEW to make the raw data available under the Freedom of Information Act (FOIA), which empowers federal courts to order an "agency" to produce "agency records improperly withheld" from an individual requesting access. The District Court granted summary judgment for respondents, holding that HEW properly denied the request on the ground that the data did not constitute "agency records" under the FOIA. The Court of Appeals affirmed. Held: HEW need not produce the requested data because they are not "agency records" within the meaning of the FOIA. Data generated by a privately controlled organization which has received federal grants (grantee), but which data has not at any time been obtained by the agency, are not "agency records" accessible under the FOIA. Pp. 177-187. (a) There is no merit to petitioners' claim that the data were at least records of UGDP, and that the federal funding and supervision of UGDP alone provide the close connection necessary to render its records "agency records" as that term is used in the FOIA. While "agency record" is not defined in the Act, Congress excluded private grantees from FOIA disclosure obligations by excluding them from the Act's definition of "agency," an action consistent with its prevalent practice of preserving the autonomy of federal grantees and their records. Since Congress found that federal funding and supervision (short of Government control) did not justify direct access to the grantee's records, it cannot be concluded that those identical activities were intended to permit indirect access through an expansive definition of "agency records." Pp. 178-182. (b) Nor may a broad definition of "agency records" be invoked so as to include all documents created by a private grantee to which the Government has access and which the Government has used. Such a broad definition is not supported by either the language, structure, or legislative history of the FOIA. Instead, Congress contemplated that an agency must first either create or obtain a record as a prerequisite to its becoming an "agency record" within the meaning of the FOIA. This conclusion is also supported by other Acts in which Congress has associated creation or acquisition with the concept of a governmental record. Although in this case HEW has a right of access to the data, and a right if it so chooses to obtain permanent custody of the UGDP records, in this context the FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained. Without first establishing that the agency has created or obtained the document, the agency's reliance on or use of the document is similarly irrelevant. Pp. 182-186. 190 U.S.App.D.C. 231, 587 F.2d 1128, affirmed. Michael R. Sonnenreich, Washington, D. C., for petitioners. Kenneth S. Geller, Washington, D. C., for respondent Harris. Thomas E. Plank, Baltimore, Md., for respondent Klimt. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 The Freedom of Information Act, 5 U.S.C. § 552, empowers federal courts to order an "agency" to produce "agency records improperly withheld" from an individual requesting access. § 552(a)(4)(B). We hold here that written data generated, owned, and possessed by a privately controlled organization receiving federal study grants are not "agency records" within the meaning of the Act when copies of those data have not been obtained by a federal agency subject to the FOIA. Federal participation in the generation of the data by means of a grant from the Department of Health, Education, and Welfare (HEW) does not make the private organization a federal "agency" within the terms of the Act. Nor does this federal funding in combination with a federal right of access render the data "agency records" of HEW, which is a federal "agency" under the terms of the Act. 2 * In 1959, a group of private physicians and scientists specializing in the treatment of diabetes formed the University Group Diabetes Program (UGDP). The UGDP conducted a long-term study of the effectiveness of five diabetes treatment regimens. Two of these treatment regimens involved diet control in combination with the administration of either tolbutamide, or phenformin hydrochloride, both "oral hypoglycemic" drugs. The UGDP's participating physicians were located at 12 clinics nationwide and the study was coordinated at the Coordinating Center of the University of Maryland. 3 The study generated more than 55 million records documenting the treatment of over 1,000 diabetic patients who were monitored for a 5- to 8-year period. In 1970, the UGDP presented the initial results of its study indicating that the treatment of adult-onset diabetics with tolbutamide increased the risk of death from cardiovascular disease over that present when diabetes was treated by the other methods studied. The UGDP later expanded these findings to report a similarly increased incident of heart disease when patients were treated with phenformin hydrochloride. These findings have in turn generated substantial professional debate. 4 The Committee on the Care of the Diabetic (CCD), a national association of physicians involved in the treatment of diabetes mellitus patients, have been among those critical of the UGDP study. CCD requested the UGDP to grant it access to the raw data in order to facilitate its review of the UGDP findings, but UGDP has declined to comply with that request. CCD therefore sought to obtain the information under the Freedom of Information Act. The essential facts are not in dispute, and we hereafter set forth those relevant to our decision. 5 The UGDP study has been solely funded by federal grants in the neighborhood of $15 million between 1961 and 1978. These grants were awarded UGDP by the National Institute of Arthritis, Metabolism, and Digestive Diseases (NIAMDD), a federal agency,1 pursuant to the Public Health Service Act, 42 U.S.C. § 241(c). NIAMDD has not only awarded the federal grants to UGDP, but has exercised a certain amount of supervision over the funded activity. Federal regulations governing supervision of grantees allow for the review of periodic reports submitted by the grantee and on-site visits, and require agency approval of major program or budgetary changes. 45 CFR §§ 74.80-74.85 (1979); 42 CFR § 52.20(b) (1979). It is undisputed, however, both that the day-to-day administration of grant-supported activities is in the hands of a grantee, and that NIAMDD's supervision of UGDP conformed to these regulations.2 6 The grantee has also retained control of its records: the patient records and raw data generated by UGDP have at all times remained in the possession of that entity, and neither the NIAMDD grants nor related regulations shift ownership of such data to the Federal Government. NIAMDD does, however, have a right of access to the data in order to insure compliance with the grant. 45 CFR § 74.24(a) (1979). And the Government may obtain permanent custody of the documents upon request. § 74.21(c). But NIAMDD has not exercised its right either to review or to obtain permanent custody of the data. 7 Although no employees of the NIAMDD have reviewed the UGDP records, the Institute did contract in 1972 with another private grantee, the Biometric Society, for an assessment of the validity of the UGDP study. The Biometric Society was given direct access to the UGDP raw data by the terms of its contract with NIAMDD. The contract with the Biometric Society, however, did not require the Society to seek access to the UGDP raw data, nor did it require that any data actually reviewed be transmitted to the NIAMDD. While the Society did review some UGDP data, it did not submit any raw data reviewed by it to the NIAMDD. The Society issued a report to the Institute in 1974 concluding that the UGDP results were "mixed" but "moderately strong." 8 An additional connection between the Federal Government and the UGDP study has occurred through the activities of the Food and Drug Administration. After the FDA was apprised of the UGDP results, the agency issued a statement recommending that physicians use tolbutamide in the treatment of diabetes only in limited circumstances. After the UGDP reported finding a similarly higher incidence of cardiovascular disease with the administration of phenformin, the FDA proposed changes in the labeling of these oral hypoglycemic drugs to warn patients of cardiovascular hazards. FDA Drug Bulletin (June 23, 1971). The FDA deferred further action on this labeling proposal, however, until the Biometric Society completed its review of the UGDP study.3 9 After the Biometric study was issued, FDA renewed its proposal to require a label warning that oral hypoglycemics should be used only in cases of adult-onset, stable diabetes that could not be treated adequately by a combination of diet and insulin. The FDA clearly relied on the UGDP study in renewing this position. 40 Fed.Reg. 28587, 28591 (1975). At the time the proposal was published, the FDA invited public comment. In response to criticism of the UGDP study and the Biometric Society's audit, the FDA conducted its own audit of the UGDP study pursuant to a delegation of NIAMDD's authority to audit grantee records. In conducting this audit, the FDA examined and copied a small sample of the UGDP raw data. This audit report has been made available for public inspection. 43 Fed.Reg. 52733 (1978). 10 Although this labeling proposal has not yet become final, other FDA regulatory action has been taken. On July 25, 1977, the Secretary of HEW suspended the New Drug Application for phenformin, one of the oral hypoglycemic medications studied by the UGDP. The decision was premised in part on the findings of the UGDP study. See Order of the Secretary of Health, Education, and Welfare, July 25, 1977. After the Secretary's temporary order of suspension was issued, proceedings before the FDA continued. The Administrative Law Judge ordered the FDA to produce all UGDP data in its possession. The FDA then produced those portions of the UGDP raw data which the agency had copied, abstracted, or directly transferred to Government premises during its audit. The ALJ found that the HEW suspension order was supported by the evidence. On November 15, 1978, the Commissioner of Food and Drugs affirmed the ALJ's finding that phenformin was not shown to be safe and ordered it withdrawn from the market. 44 Fed.Reg. 20967 (1979). This decision was not based substantially on the UGDP study.4 11 Petitioners had long since initiated a series of FOIA requests seeking access to the UGDP raw data. On August 7, 1975, HEW denied their request for the UGDP data on the grounds that no branch of HEW had ever reviewed or seen the raw data; that the FDA's proposed relabeling action relied on the UGDP published reports and not on an analysis of the underlying data; that the data were the property of the UGDP, a private group; and that the agencies were not required to acquire and produce those data under the FOIA.5 The following month petitioners filed this FOIA suit in the United States District Court for the District of Columbia to require HEW to make available all of the raw data compiled by UGDP. The District Court granted summary judgment in favor of respondents, holding that HEW properly denied the request on the ground that the patient data did not constitute "agency records" under the FOIA. 12 The Court of Appeals affirmed on the same rationale. Forsham v. Califano, 190 U.S.App.D.C. 231, 587 F.2d 1128 (1978). The court found that although NIAMDD is a federal agency, its grantees are not federal agencies. The court rejected the petitioners' argument that the UGDP's records were nevertheless also the federal agency's records. Although HEW has a right of access to the documents, the court reasoned that this right did not render the documents "agency records" since the FOIA only applies to records which have been "created or obtained . . . in the course of doing its work."6 Id., at 239, 587 F.2d, at 1136. The dissenting judge concluded that the UGDP data were "agency records" under the FOIA since the Government had been "significantly involved" in the study through its funding, access to the raw data, and reliance on the study in its regulatory actions. II 13 As we hold in the companion case of Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267, it must be established that an "agency" has "improperly withheld agency records" for an individual to obtain access to documents through an FOIA action. We hold here that HEW need not produce the requested data because they are not "agency records" within the meaning of the FOIA. In so holding, we reject three separate but related claims of petitioners: (1) the data they seek are "agency records" because they were at least "records" of UGDP, and UGDP in turn received its funds from a federal agency and was subject to some supervision by the agency in its use of those funds; (2) the data they seek are "agency records" because HEW, concededly a federal agency, had sufficient authority under its grant agreement to have obtained the data had it chosen to do so; and (3) the data are "agency records" because they formed the basis for the published reports of UGDP, which in turn were relied upon by the FDA in the actions described above.7 14 Congress undoubtedly sought to expand public rights of access to Government information when it enacted the Freedom of Information Act, but that expansion was a finite one. Congress limited access to "agency records," 5 U.S.C. § 552(a)(4)(B),8 but did not provide any definition of "agency records" in that Act. The use of the word "agency" as a modifier demonstrates that Congress contemplated some relationship between an "agency" and the "record" requested under the FOIA. With due regard for the policies and language of the FOIA, we conclude that data generated by a privately controlled organization which has received grant funds from an agency (hereafter a grantee),9 but which data has not at any time been obtained by the agency, are not "agency records" accessible under the FOIA. 15 We first examine petitioners' claim that the data were at least records of UGDP, and that the federal funding and supervision of UGDP alone provides the close connection necessary to render its records "agency records" as that term is used in the Freedom of Information Act. Congress did not define "agency record" under the FOIA, but it did define "agency." The definition of "agency" reveals a great deal about congressional intent as to the availability of records from private grantees under the FOIA, and thus, a great deal about the relevance of federal funding and supervision to the definitional scope of "agency records." Congress excluded private grantees from FOIA disclosure obligations by excluding them from the definition of "agency," an action consistent with its prevalent practice of preserving grantee autonomy. It has, for example, disclaimed any federal property rights in grantee records by virtue of its funding. We cannot agree with petitioners in light of these circumstances that the very federal funding and supervision which Congress found insufficient to make the grantee an agency subject to the FOIA nevertheless makes its records accessible under the same Act. 16 Under 5 U.S.C. § 552(e) an "agency" is defined as 17 "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government . . ., or any independent regulatory agency." 18 The legislative history indicates unequivocally that private organizations receiving federal financial assistance grants are not within the definition of "agency." In their Report, the conferees stated that they did "not intend to include corporations which receive appropriated funds but are neither chartered by the Federal Government nor controlled by it, such as the Corporation for Public Broadcasting." H.Conf.Rep.No.93-1380, pp. 14-15 (1974), reprinted in Freedom of Information Act and Amendments of 1974 Source Book 231-232 (Jt. Comm. Print 1975). Through operation of this exclusion, Congress chose not to confer any direct public rights of access to such federally funded project information.10 19 This treatment of federal grantees under the FOIA is consistent with congressional treatment of them in other areas of federal law. Grants of federal funds generally do not create a partnership or joint venture with the recipient, nor do they serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision. United States v. Orleans, 425 U.S. 807, 818, 96 S.Ct. 1971, 1977, 48 L.Ed.2d 390 (1976). Measured by these standards, the UGDP is not a federal instrumentality or an FOIA agency.11 20 Congress could have provided that the records generated by a federally funded grantee were federal property even though the grantee has not been adopted as a federal entity. But Congress has not done so, reflecting the same regard for the autonomy of the grantee's records as for the grantee itself. Congress expressly requires an agency to use "procurement contracts" when the "principal purpose of the instrument is the acquisition . . . of property or services for the direct benefit or use of the Federal Government . . . ." Federal Grant and Cooperative Agreement Act of 1977, § 4, 92 Stat. 4, 41 U.S.C. § 503 (1976 ed., Supp. II). In contrast, "grant agreements" must be used when money is given to a recipient "in order to accomplish a public purpose of support or stimulation authorized by Federal statute, rather than acquisition . . . of property or services . . . ." § 5, 41 U.S.C. § 504 (1976 ed., Supp. II). As in this case, where a grant was used, there is no dispute that the documents created are the property of the recipient and not the Federal Government. See 45 CFR § 74.133 (1979). The HEW regulations do retain a right to acquire the documents. Those regulations, however, clearly demonstrate that unless and until that right is exercised the records are only the "records of grantees." 45 CFR § 74.24 (1979).12 Therefore, were petitioners to prevail in this action, they would have obtained a right of access to some 55 million documents created, owned, and possessed by a private recipient of federal funds. While this fact itself is not dispositive of the outcome, it is nonetheless an important consideration when viewed in light of these congressional attempts to maintain the autonomy of federal grantees and their records. 21 The fact that Congress has chosen not to make a federal grantee an "agency" or to vest ownership of the records in the Government does not resolve with mathematical precision the question of whether the granting agency's funding and supervisory activities nevertheless make the grantee's records "agency records." Records of a nonagency certainly could become records of an agency as well. But if Congress found that federal funding and supervision did not justify direct access to the grantee's records as it clearly did, we fail to see why we should nevertheless conclude that those identical activities were intended to permit indirect access through an expansive definition of "agency records."13 Such a conclusion would not implement the intent of Congress; it would defeat it. 22 These considerations do not finally conclude the inquiry, for conceivably other facts might indicate that the documents could be "agency records" even though generated by a private grantee. The definition of "agency" and congressional policy towards grantee records indicate, however, that Congress did not intend that grant supervision short of Government control serve as a sufficient basis to make the private records "agency records" under the Act, and reveal a congressional determination to keep federal grantees free from the direct obligations imposed by the FOIA. In ascertaining the intended expanse of the term "agency records" then, we must, of course, construe the Act with regard both for the congressional purpose of increasing public access to governmental records and for this equally explicit purpose of retaining grantee autonomy. B 23 Petitioners seek to prevail on their second and third theories, even though their first be rejected, by invoking a broad definition of "agency records," so as to include all documents created by a private grantee to which the Government has access, and which the Government has used. We do not believe that this broad definition of "agency records," a term undefined in the FOIA, is supported by either the language of that Act or its legislative history. We instead agree with the opinions of the courts below that Congress contemplated that an agency must first either create or obtain a record as a prerequisite to its becoming an "agency record" within the meaning of the FOIA. While it would be stretching the ordinary meaning of the words to call the data in question here "agency records," we need not rest our conclusion solely on the "plain language" rule of statutory construction. The use of the term "record" by Congress in two other Acts, and the structure and legislative history of the FOIA alike support the same conclusion. 24 Although Congress has supplied no definition of agency records in the FOIA, it has formulated a definition in other Acts. The Records Disposal Act, in effect at the time Congress enacted the Freedom of Information Act, provides the following threshold requirement for agency records: 25 " 'records' includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business . . . ." 44 U.S.C. § 3301.14 (Emphasis added.) 26 The Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 23-24 (1967), S.Doc.No.93-82, pp. 222-223 (1974), concludes that Congress intended this aspect of the Records Act definition to apply to the Freedom of Information Act. 27 The same standard emerges in the Presidential Records Act of 1978. The term "presidential records" is defined as "documentary materials . . . created or received by the President . . . ." 44 U.S.C. § 2201(2) (1976 ed., Supp. II). (Emphasis added). While these definitions are not dispositive of the proper interpretation of congressional use of the word in the FOIA, it is not insignificant that Congress has associated creation or acquisition with the concept of a governmental record. The text, structure, and legislative history of the FOIA itself reinforce that significance in this case. 28 The only direct reference to a definition of records in the legislative history, of which we are aware, occurred during the Senate hearings leading to the enactment of FOIA. A representative of the Interstate Commerce Commission commented that "[s]ince the word 'records' . . . is not defined, we assume that it includes all papers which an agency preserves in the performance of its functions." Administrative Procedure Act: Hearings on S. 1160 et al. before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 244 (1965).15 The legislative history of the FOIA abounds with other references to records acquired by an agency. For example, the legislative Reports clarify that confidential information "submitted . . . to a Government . . . "agency," "obtained by the Government," or "given to an agency" otherwise subject to disclosure, was made exempt. S.Rep.No.813, 89th Cong., 1st Sess., 9 (1965), reprinted in Freedom of Information Act Source Book, S.Doc.No.93-82, p. 44 (Comm. Print 1974); H.R.Rep.No.1497, 89th Cong., 2d Sess. (1966), reprinted in Source Book, at 31. 29 Section 552(b)(4) provides the strongest structural support for this construction. This section exempts trade secrets and commercial or financial information "obtained from a person." This exemption was designed to protect confidential information "submitted" by a borrower to a lending agency or "obtained by the Government" through questionnaires or other inquiries, where such information "would customarily not be released to the public by the person from whom it was obtained." S.Rep.No.813, supra, at 9; H.R.Rep.No.1497, supra, at 10. It is significant that Congress did not include a similar exemption for confidential information contained in records which had never been "obtained from a person." It is obvious that this omission does not reflect a congressional judgment that records remaining in private control are not similarly deserving of this exemption, but rather a judgment that records which have never passed from private to agency control are not agency records which would require any such exemption. This possessory emphasis is buttressed by similar considerations implicit in the use of the word "withholding" in the statutory framework. See Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267.16 30 The same focus emerges in a congressional amendment to the Securities Exchange Act of 1934. That Act had provided its own standards for public access to documents generated by the Act. Congress amended the Act to provide: 31 "For purposes of [the FOIA] the term 'records' includes all applications, statements, reports, contracts, correspondence, notices, and other documents filed with or otherwise obtained by the Commission pursuant to this chapter or otherwise." (Emphasis added.) 15 U.S.C. § 78x. 32 We think that the weight this construction lends to our conclusion is overborne neither by an agency's potential access to the grantee's information nor by its reliance on that information in carrying out the various duties entrusted to it by Congress. The Freedom of Information Act deals with "agency records," not information in the abstract. Petitioners place great reliance on the fact that HEW has a right of access to the data, and a right if it so chooses to obtain permanent custody of the UGDP records. 45 CFR §§ 74.24, 74.21 (1979). But in this context the FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained.17 To construe the FOIA to embrace the latter class of documents would be to extend the reach of the Act beyond what we believe Congress intended. We rejected a similar argument in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-162, 95 S.Ct. 1504, 1521-1522, 44 L.Ed.2d 29 (1975), by holding that the FOIA imposes no duty on the agency to create records. By ordering HEW to exercise its right of access, we effectively would be compelling the agency to "create" an agency record since prior to that exercise the record was not a record of the agency. Thus without first establishing that the agency has created or obtained the document, reliance or use is similarly irrelevant. 33 We think the foregoing reasons dispose of all petitioners' arguments. We therefore conclude that the data petitioners seek are not "agency records" within the meaning of the FOIA. UGDP is not a "federal agency" as that term is defined in the FOIA, and the data petitioners seek have not been created or obtained by a federal agency. Having failed to establish this threshold requirement, petitioners' FOIA claim must fail, and the judgment of the Court of Appeals is accordingly 34 Affirmed. 35 Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting. 36 I agree with the Court that "[r]ecords of a nonagency certainly could become records of an agency as well." Ante, at 181. But the Court does not explain why such a conversion does not occur in this case.1 Because I believe we should articulate standards under which to analyze such cases and because I believe that under a proper test UGDP's data should be treated as "agency records," I dissent. 37 * The Court argues at length that UGDP is not an agency. But whether or not UGDP is an "agency" is simply not at issue in this case. Rather, the only question is whether data generated in the course of this UGDP study are "agency records." 38 The Court concedes, of course, that the statute itself does not define "agency records."2 Therefore, our task is to construe the statutory language consistently with the purposes of FOIA.3 As detailed in the dissenting opinion below, Forsham v. Califano, 190 U.S.App.D.C. 231, 244-245, 587 F.2d 1128, 1141-1142 (1978) (Bazelon, J., dissenting), FOIA is a broad enactment meant to open the processes of Government to public inspection. It reflects a finding that if left to themselves agencies would operate in near secrecy.4 FOIA was, therefore, enacted to provide access to information to enable "an informed electorate," so "vital to the proper operation of a democracy," to govern itself. S.Rep.No.813, 89th Cong., 1st Sess., 3 (1965). Nothing whatever in the legislative history suggests that Congress meant to allow agencies to insulate important steps in decisionmaking on the basis of the technical niceties of who "owns" crucial documents. 39 Where the nexus between the agency and the requested information is close, and where the importance of the information to public understanding of the decisions or the operation of the agency is great, I believe the congressional purposes require us to hold that the information sought is an "agency record" within the meaning of FOIA. 40 Admittedly, this test does not establish a bright line, but the evaluation of a calculus of relevant factors is nothing new to the law.5 The first such factor is the importance of the record to an understanding of Government activities. If, for instance, the significance of the record is limited to understanding the workings of the nonagency, the public has no FOIA-protected interest in access. The weight to be given this factor can be tested by examining the role accorded the material in agency writings and the extent to which the agency reached its conclusions in reliance upon the particular source. 41 Mere materiality of information, standing alone, of course, is not enough.6 FOIA does not give the public any unrestricted right to examine all data relied on by an agency. Congress required that the information constitute an "agency record." Thus, another necessary factor is that there be a link between the agency and the record.7 Nothing in FOIA or its history suggests, however, that the connection must amount to outright possession or creation. Instead, again drawing from the legislative purposes, I believe the link must be such that the agency has treated the record as if it were part of the regulatory process, as if it were in effect a record which exists to serve the regulatory process. Government by secrecy is no less destructive of democracy if it is carried on within agencies or within private organizations serving agencies. The value of the record to the electorate is not affected by whether the relationship between the agency and the private organization is governed formally by a procurement contract, a "joint venture" agreement, or a grant.8 The existence of this factor can be tested by examining, inter alia, the degree to which the impetus for the creation of the record came from the agency or was developed independently, the degree to which the creation of the record was funded publicly or privately, the extent of governmental supervision of the creation of the record, and the extent of continuing governmental control over the record. II 42 On the facts of this case, I would conclude that UGDP's raw data are records of HEW. Both HEW and the FDA have taken significant actions in complete reliance on the UGDP study. The FDA has directly endorsed the study's conclusions and, in reliance thereon, sought mandatory labeling warnings on the drugs criticized by the UGDP. HEW cited the UGDP study as one of its basic sources when it suspended one of the drugs as an immediate hazard. The suggestion that these administrative actions relied solely on the published reports and not on the underlying raw data at issue here is unrealistic. The conclusions can be no stronger or weaker than the data on which they are based. One cannot even begin to evaluate an agency action without access to the raw data on which the conclusions were based, especially in a case such as this where the data are nonduplicable. The importance of the raw data in evaluating derivative conclusions was recognized by the FDA when it employed another independent organization, the Biometric Society, to check UGDP's work. FDA secured access for the Society to the raw data, and the Society used a sample of the data. 43 This case is set against the background of an intense, often bitter,9 battle being waged in the medical community over the validity of the UGDP study and the correct treatment regimen for diabetes. By endorsing the UGDP study the Federal Government has aligned itself on one side of the fight and has all but outlawed the regimen recommended by the other side. Petitioners in this case are medical scientists seeking to resolve questions that have been raised about the scientific and statistical methods underlying an agency's conclusions. This seems to me to be an archetypical instance of the need for public dissemination of the information. 44 Even so, I doubt that the information could be held to be an "agency record" had the Government not been so deeply involved in its creation. Petitioners have argued that the National Institutes of Health, in effect, did create these records. The agency not only completely funded the project's operation, but initiated the project and took responsibility for developing its research protocol as well. See Forsham v. Califano, 190 U.S.App.D.C., at 251, 587 F.2d, at 1148 (Bazelon, J., voting for rehearing). They contend further that, beyond the normal level of NIH involvement in its grantees' studies set out by the Court, ante, at 173, the NIH exercised continuing supervision over this study through a "Policy Advisory Board" as a condition of the grant renewals.10 Forsham v. Califano, supra. Finally, as the Court also acknowledges, there is no question that the Government has full access to the data under the terms of the grant and under federal regulations. Indeed, if it so chose, the Government could obtain permanent custody of the data merely by requesting it from UGDP. Thus, the data remain with the grantee only at the pleasure of the Government. In my view the record abundantly establishes that these data were developed with public funds and with Government assistance and, in large part, for governmental purposes. Therefore, I would hold that they are agency records, and I respectfully dissent. III 45 I emphasize that the standards I suggest do not mean opening to the public the files of all grantees or of all who submit information to the Government. In many cases grantees' records should not be treated as agency records. But the Court's approach must inevitably undermine FOIA's great purpose of exposing Government to the people. It is unavoidable that as the work of federal agencies mushrooms both in quantity and complexity the agencies must look to outside organizations to assist in governmental tasks. Just as the explosion of federal agencies, which are not directly responsible to the electorate, worked to hide the workings of the Federal Government from voters before enactment of FOIA, S.Rep.No.813, 89th Cong., 1st Sess., 3 (1965), the understandable tendency of agencies to rely on nongovernmental grantees to perform myriad projects distances the electorate from important information by one more step. If the records of such organizations, when drawn directly into the regulatory process, are immune from public inspection, then government by secrecy must surely return. 1 The NIAMDD is one of several Institutes of the National Institutes of Health (NIH). It is authorized by statute to conduct and fund research on diabetes and other diseases. 42 U.S.C. §§ 289a, 289c-1. The NIH are a component of the federal Public Health Service, which is itself a part of the Department of Health, Education, and Welfare. See Reorg. Plan No. 3 of 1966, 3 CFR 1023 (1966-1970 Comp.), note following 42 U.S.C. § 202, and Reorganization Order of April 1, 1968, 33 Fed.Reg. 5426. 2 Petitioners do contend that the federal supervision of the UGDP study was substantial and more extensive than that ordinarily exercised. They do not, however, maintain that there was day-to-day supervision. See infra, at 180, and n.11. 3 Prior to the FDA's decision to defer action, petitioners in this case sued the FDA to enjoin the proposed labeling, contesting the validity of the UGDP study. The First Circuit remanded the case to the FDA for exhaustion of administrative remedies. Bradley v. Weinberger, 483 F.2d 410 (1973). 4 The order of the Commissioner discounts reliance on the UGDP study. The order states that the ALJ was correct in concluding that from "an evidentiary standpoint" the "lack of availability of underlying data casts considerable doubt on the reliability of the UGDP conclusions." 44 Fed.Reg. 20969 (1979). The ALJ did permit reference to the UGDP study as a basis for expert opinion. The Commissioner concluded that this use of the study was permissible since the data underlying expert opinions need not always be admitted to substantiate the opinions. Nearly 400 published articles were included in the record of the phenformin proceeding and none of the articles was accompanied by the raw data on which they were based. The Commissioner noted that the ALJ referenced the UGDP study in only one paragraph of his eight-page summary. The Commissioner concluded that the agency was not required to submit the UGDP data since it had not relied upon that data, but only upon the actual study. 21 CFR § 12.85 (1979). Nevertheless, the Commissioner stated that he "reviewed the testimony of the Bureau of Drugs' expert witnesses and [found] that their reliance upon the UGDP study was not substantial and cannot reasonably be characterized as pivotal to the opinions expressed by those witnesses." 44 Fed.Reg. 20969 (1979). 5 The denial of this FOIA request preceded the FDA's audit of the UGDP data. 6 The court opinion also suggested that a document is an "agency record" if the federal agency has a duty to obtain the record. 190 U.S.App.D.C., at 239, and n.18, 587 F.2d, at 1136, and n. 18 (Leventhal, J.). Judge MacKinnon concurred separately to reserve the question of whether or not records which an agency had a duty to obtain were recoverable under the FOIA. We side with Judge MacKinnon on the breadth of the principle necessary to the decision in this case. Id., at 242, 587 F.2d, at 1139. 7 Petitioners maintain that the FDA has relied on all the raw data through reliance on the report and through reliance on information obtained pursuant to its audit of a sample of the data. The Court of Appeals found, however, that data reviewed by the FDA have been made available to petitioners. Id., at 236, 587 F.2d, at 1133. As we indicate infra, reliance on a document does not make it an agency record if it has not been created or obtained by a federal agency. Reliance or use may well be relevant, however, to the question of whether a record in the possession of an agency is an "agency record." See Kissinger, 445 U.S., at 157, 100 S.Ct., at 972. 8 In § 552(a)(3) Congress did not use the term "agency records." That section provides: "[E]ach agency, upon any request for records . . . shall make the records promptly available to any person." Since the enforcement provision of the Act, § 552(a)(4)(B), refers only to "agency records" it is certain that the disclosure obligations imposed by § 552(a)(3) were only intended to extend to agency records. That limitation is implicit throughout the Act. 9 We use the term "grantee" or "private grantee" to describe private recipients of federal funds not subjected to sufficient Government control to render them federal agencies. We do not suggest, by use of this term, that an organization receiving federal grant funds could never be found to be a federal agency. See infra, at 180, and n.11. 10 Numerous bills seeking to extend the FOIA to federal grantees have been introduced in each Congress since the 92d, but none has yet been reported out of committee. See H.R.11013, 92d Cong., 1st Sess. (1969); H.R.1291, 93d Cong., 1st Sess. (1973); H.R.1205, 94th Cong., 1st Sess. (1975); H.R.3207, 95th Cong., 1st Sess. (1977); H.R.1465, 96th Cong., 1st Sess. (1979). 11 Before characterizing an entity as "federal" for some purpose, this Court has required a threshold showing of substantial federal supervision of the private activities, and not just the exercise of regulatory authority necessary to assure compliance with the goals of the federal grant. See United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). While the petitioners emphasize the Government's interest in monitoring the UGDP's study, they do not contend that this supervision is sufficient to render UGDP a satellite federal agency. The funding and supervision indicated by the facts of this case are consistent with the usual grantor-grantee relationship and do not suggest the requisite magnitude of Government control. Orleans, supra, at 815-816, 96 S.Ct., at 1976. 12 The particular grant agreement in issue similarly confers on the NIAMDD a limited right of access to "records of the grantee." 13 Nor could this distinction be explained by a hypothetical congressional preference for placing the burdens of production on the agency rather than the private grantee. Although under the petitioners' construction of the Act the request would have to be made by the agency, the administrative burdens of searching and producing, or providing access, would necessarily accrue substantially to the party in possession, i. e., the private grantee. 14 The definition of "records" under the Records Disposal Act further requires that records made or received by the agency also be "preserved or appropriate for preservation by that agency . . . as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them." Government documents made or received by an agency that are not appropriate for preservation are referred to as "nonrecord materials." 41 CFR § 101-11.401-3(d) (1979). It has not been settled whether the FOIA definition of agency records extends to "nonrecord materials." We need not reach that question since the documents sought by petitioners do not meet the threshold requirement that they be "made or received" by a federal agency. 15 It is interesting to note that the witness expressed concern that such an "all-expansive meaning" necessitated clear categorical exemptions. 16 We certainly do not indicate, however, that physical possession, or initial creation, is by itself always sufficient. See Kissinger, supra, at 157, 100 S.Ct., at 972. 17 We need not categorize what agency conduct is necessary to support a finding that it has "obtained" documents, since an unexercised right of access clearly does not satisfy this requirement. Government access to documents clearly could not be the central component of the definition of agency records contemplated by Congress since the Federal Government has access to near astronomical numbers of private documents. A mere sampling of access statutes includes: Internal Revenue Code of 1954, § 7602, 26 U.S.C. § 7602 (taxpayers or potential taxpayers); 15 U.S.C. §§ 78q, 78u (persons subject to the Securities Exchange Act of 1934); 29 U.S.C. § 657 (each employer subject to the Occupational Safety and Health Act of 1970). Even if the Court were to accept petitioners' argument that only contractual access should give rise to "agency record" status, a limitation which does not appear readily supportable, the class of documents subject to FOIA disclosure would still be staggering. The record in this case indicates that NIAMDD alone has some 18,000 research grants outstanding. 1 The Court suggests that if a federal grant created a partnership or joint venture between the agency and the grantee, the grantee might become an agency and, thus, its records might become agency records. Ante, at 180. Likewise, the Court might reach a different result where the agency has chosen to buy data through a procurement contract instead of a grant. Ibid. But neither of these is an instance involving records of a nonagency. In the first the grantee becomes an agency, and in the second the records do not belong to the nonagency. 2 Therefore, the Court surely overstates the fact in saying that Congress "clearly" found that federal funding and supervision are not relevant to whether direct access to grantee's records is justified, ante, at 181, and the Court does not explain why Congress' silence "reflect[s] the same regard for the autonomy of the grantee's records as for the grantee itself," ante, at 180. Moreover, nothing whatever is cited in the legislative history to support the Court's claim that the "purpose of retaining grantee autonomy" was "equally explicit" as a purpose of FOIA as was increasing public access to governmental records. Ante, at 182. 3 I find the Court's references to other statutes unenlightening. The Records Disposal Act and Presidential Records Act of 1978 are properly limited to records created or received because the agencies or the Executive cannot physically dispose of what they do not possess. These Acts are aimed at monitoring the physical destruction of agency documents and settling claims of ownership of Presidential documents. The agencies and the Executive cannot destroy or take for private use what they have never possessed. As for the "structural" argument drawn from 5 U.S.C. § 552(b)(4), I cannot imagine that trade secrets or commercial information not submitted to the Government would have been created or used for governmental purposes or with governmental funds. In short, the Government would have no claim of any kind on the information if it had not been submitted. 4 FOIA was enacted because agencies had turned the predecessor statute on its head, transforming a public information statute into a secrecy statute. H.R.Rep.No.1497, 89th Cong., 2d Sess. (1966), reprinted in Freedom of Information Act Source Book, S.Doc.No.93-82, pp. 22, 25-27 (Comm. Print 1974). 5 The Court offers no manageable standards of any kind. No guidance is given to the decisionmaker as to how to determine at what point a relationship between an agency and another organization ripens into a "joint venture." And, of course, we are given no key to guide the determination of what nonagency records "become records of an agency as well." Ante, at 181. 6 The Court, by insisting on analyzing petitioners' contentions separately, never addresses the full, combined force of the arguments. It is only in combination that the various factors alluded to by petitioners tell the full story of governmental reliance on and involvement with the data and, thus, the importance to the success of Congress' FOIA scheme of disclosing this information. 7 See Note, The Definition of "Agency Records" Under the Freedom of Information Act, 31 Stan.L.Rev. 1093, 1106-1114 (1979). 8 Certainly the agency cannot control the legal consequences simply by the label it attaches to a relationship. 9 One former UGDP investigator has challenged the scientific honesty of the research coordinator, who is also the current custodian of the raw data. 10 Because the case comes to us on affirmance of the grant of respondents' motion for summary judgment, we must accept petitioners' version of any disputed facts. Thus, for instance, we are not free to de-emphasize the extent of federal supervision of the UGDP study alleged by petitioners.

45

445 U.S. 136 100 S.Ct. 960 63 L.Ed.2d 267 Henry A. KISSINGER, Petitioner,v.REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS et al. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS et al., Petitioners, v. Henry A. KISSINGER. Nos. 78-1088, 78-1217. Argued Oct. 31, 1979. Decided March 3, 1980. Syllabus Henry Kissinger served as an Assistant to the President for National Security Affairs from 1969 to 1975 and as Secretary of State from 1973 to 1977. Throughout these periods, his secretaries monitored his telephone conversations and recorded their contents either by shorthand or on tape. The stenographic notes or tapes were used to prepare summaries and sometimes verbatim transcripts of the conversations (hereafter notes or telephone notes). In 1976, after the notes had been moved from Kissinger's office in the State Department to a private estate in New York, he donated them to the Library of Congress, subject to an agreement restricting public access to them for a specified period, and they were transported to the Library. Three requests for the notes were made to the State Department under the Freedom of Information Act (FOIA): (1) a request by a newspaper columnist (Safire), at a time when the notes were still located in Kissinger's State Department office, for any notes covering certain dates in which Safire's name appeared or in which Kissinger discussed information "leaks" with certain White House officials; (2) a request by the Military Audit Project, after the notes had been transferred to the Library of Congress, for all notes made while Kissinger was Secretary of State; and (3) a request at about the same time by the Reporters Committee for Freedom of the Press and others for notes made both while Kissinger was Presidential Assistant and while he was Secretary of State. The State Department denied the first request on the ground that the requested notes had been made while Kissinger was Presidential Assistant and therefore were not agency records subject to FOIA disclosure. The second and third requests were denied on the grounds both that the requested notes were not agency records and that their deposit with the Library of Congress prior to the requests terminated the State Department's custody and control. During this period when he was no longer Secretary of State, Kissinger refused the Government Archivist's requests for return of the notes. Suits were filed by the various FOIA requesters against Kissinger, the Library of Congress, the Secretary of State, and the State Department, seeking enforcement of the FOIA requests and a declaratory judgment that the telephone notes were agency records that had been unlawfully removed and were being improperly withheld. The District Court ruled in the plaintiffs' favor as to the notes made while Kissinger was Secretary of State but denied relief as to the notes made while he was Presidential Assistant, finding that the former notes were "agency records" subject to disclosure under the FOIA, and that Kissinger had wrongfully removed them from the State Department in violation of the Federal Records Disposal Act. An order was entered requiring the Library of Congress to return the Secretary of State notes to the State Department and requiring the Department to determine which of the notes are exempt from disclosure under the FOIA and to provide the required materials to the plaintiffs. The Court of Appeals affirmed. Held: 1. The District Court had no authority to order transfer of the notes, including those made while Kissinger was Secretary of State, from the Library of Congress to the State Department at the behest of the named plaintiffs. Pp. 146-155. (a) No provision of either the Federal Records Act of 1950, which establishes a records management program for federal agencies, or the complementary Records Disposal Act, which provides the exclusive means for record disposal, expressly confers a right of action on private parties nor can such a right of action be implied. The language of these Acts merely "proscribe certain conduct" and does not "create or alter civil liabilities," Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 247, 62 L.Ed.2d 146, and the Records Act also expressly provides administrative remedies for violations of the Act. Moreover, the legislative history of the Acts confirms that congressional silence as to a private right of action was purposeful, indicating that their purpose was not to benefit private parties but solely to benefit the agencies themselves and the Federal Government as a whole. Thus, regardless of whether Kissinger had violated these Acts, Congress has not vested federal courts with jurisdiction to adjudicate that question upon suit by a private party, such responsibility being vested in the administrative authorities. Pp. 147-150. (b) Nor does the FOIA furnish the congressional intent to permit private actions to recover records wrongfully removed from Government custody. Under this Act, federal jurisdiction is dependent upon a showing that an agency has (1) "improperly" (2) "withheld" (3) "agency records." Here, the State Department, a covered agency, has not "withheld" agency records within the meaning of the FOIA, since Congress did not mean that an agency improperly withholds a document that has been removed from the agency's possession prior to the filing of the FOIA request, the agency in such case having neither the custody nor control necessary to enable it to withhold. And an agency's failure to sue a third party to obtain possession is not a withholding under the Act. This conclusion that possession or control is a prerequisite to FOIA disclosure is reinforced by an examination of the Act's purposes, from which it is apparent that Congress never intended, when it enacted the FOIA, to displace the statutory scheme embodied in the Federal Records and Records Disposal Acts providing for administrative remedies to safeguard against wrongful removal of agency records as well as to retrieve wrongfully removed records. Pp. 150-154. (c) Under the circumstances of this case where Kissinger had refused the Archivist's requests for return of the documents and he and the Library of Congress as his donee are holding the documents in question under a claim of right, the State Department cannot be said to have had possession or control of the documents at the time the requests were received, and, therefore, it did not withhold any agency records, an indispensable prerequisite to liability in a suit under the FOIA. Pp. 154-155. 2. Safire's request sought disclosure of documents that were not "agency records" within the meaning of the FOIA. While the FOIA makes the "Executive Office of the President" an agency subject to the Act, the legislative history makes it clear that the "Executive Office" does not include the Office of the President. Thus, since Safire's request sought notes made by Kissinger while acting in his capacity as Presidential Assistant, the requested notes were not "agency records" when they were made. Pp. 155-157. 191 U.S.App.D.C. 213, 589 F.2d 1116, affirmed in part and reversed in part. David Ginsburg, Washington, D. C., for Henry A. Kissinger. William H. Alsup, for Federal Parties. William A. Dobrovir, Washington, D. C., for Military Audit Project. Robert M. Sussman, Washington, D. C., for Freedom of the Press. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 The Freedom of Information Act (FOIA) vests jurisdiction in federal district courts to enjoin an "agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). We hold today that even if a document requested under the FOIA is wrongfully in the possession of a party not an "agency," the agency which received the request does not "improperly withhold" those materials by its refusal to institute a retrieval action. When an agency has demonstrated that it has not "withheld" requested records in violation of the standards established by Congress, the federal courts have no authority to order the production of such records under the FOIA. 2 * This litigation arises out of FOIA requests seeking access to various transcriptions of petitioner Kissinger's telephone conversations. The questions presented by the petition necessitate a thorough review of the facts. A. 3 Henry Kissinger served in the Nixon and Ford administrations for eight years. He assumed the position of Assistant to the President for National Security Affairs in January 1969. In September 1973, Kissinger was appointed to the office of Secretary of State, but retained his National Security Affairs advisory position until November 3, 1975. After his resignation from the latter position, Kissinger continued to serve as Secretary of State until January 20, 1977. Throughout this period of Government service, Kissinger's secretaries generally monitored his telephone conversations and recorded their contents either by shorthand or on tape. The stenographic notes or tapes were used to prepare detailed summaries, and sometimes verbatim transcripts, of Kissinger's conversations.1 Since Kissinger's secretaries generally monitored all of his conversations, the summaries discussed official business as well as personal matters. The summaries and transcripts prepared from the electronic or stenographic recording of his telephone conversations throughout his entire tenure in Government service were stored in his office at the State Department in personal files. 4 On October 29, 1976, while still Secretary of State, Kissinger arranged to move the telephone notes from his office in the State Department to the New York estate of Nelson Rockefeller. Before removing the notes, Kissinger did not consult the State Department's Foreign Affairs Document and Reference Center (FADRC), the center responsible for implementing the State Department's record maintenance and disposal program. Nor did he consult the National Archives and Records Service (NARS), a branch of the General Services Administration (GSA) which is responsible for records preservation throughout the Federal Government. Kissinger had obtained an opinion from the Legal Adviser of the Department of State, however, advising him that the telephone summaries were not agency records but were his personal papers which he would be free to take when he left office.2 5 After Kissinger effected this physical transfer of the notes, he entered into two agreements with the Library of Congress deeding his private papers. In the first agreement, dated November 12, 1976, Kissinger deeded to the United States, in care of the Library of Congress, one collection of papers. Kissinger's telephone notes were not included in this collection. The agreement established terms obligating Kissinger to comply with certain restrictions on the inclusion of official documents in the collection and obligating the Library to respect restrictions on access. The agreement required that official materials in the collection would consist of "copies of government papers of which there is an original or record copy in government files." It also provided that all such materials must have been "approved for inclusion in the Collection" by "authorized officials." 6 Public access to the collection, under the terms of the deed, will not begin until 25 years after the transfer or 5 years after Kissinger's death, whichever is later. Until that time, access is restricted to (1) employees of the Library of Congress who have been jointly approved by the Library of Congress and Mr. Kissinger; (2) persons who have received the written permission of Mr. Kissinger; and (3) after Kissinger's death, persons who have received the written permission of a committee to be named in his will. Kissinger and all of his research assistants who have appropriate security clearance retain unrestricted access to the collection. 7 After this agreement was executed, the Department of State formulated procedures for the review of the documents and their transfer to the Library of Congress. Employees reviewed the collection and retained (a) original or record copies of documents belonging to the agency, and (b) any materials containing classified information. In the donation process, Kissinger was also required to sign the Department's Standard Separation Statement affirming that he had "surrendered to responsible officials . . . documents or material containing classified or administratively controlled information furnished . . . during the course of [Government] employment or developed as a consequence thereof, including any diaries, memorandums of conversations, or other documents of a personal nature. . . ." 8 On December 24, 1976, by a second deed, Kissinger donated a second collection consisting of his telephone notes. This second agreement with the Library of Congress incorporated by reference all of the terms and conditions of the first agreement. It provided in addition, however, that public access to the transcripts would be permitted only with the consent, or upon the death, of the other parties to the telephone conversations in question. 9 On December 28, 1976, the transcripts were transported directly to the Library from the Rockefeller estate. Thus the transcripts were not reviewed by the Department of State Document and Reference Center with the first collection of donated papers before they were delivered into the possession of the Library of Congress. Several weeks after they were moved to the Library, however, one of Kissinger's personal aides did extract portions of the transcripts for inclusion in the files of the State Department and the National Security Council. Pursuant to the instructions of the State Department Legal Adviser, the aide included in the extracts, "any significant policy decisions or actions not otherwise reflected in the Department's records." B 10 Three separate FOIA requests form the basis of this litigation. All three requests were filed while Kissinger was Secretary of State, but only one request was filed prior to the removal of the telephone notes from the premises of the State Department. This first request was filed by William Safire, a New York Times columnist, on January 14, 1976. Safire requested the Department of State to produce any transcripts of Kissinger's telephone conversations between January 21, 1969, and February 12, 1971, in which (1) Safire's name appeared or (2) Kissinger discussed the subject of information "leaks" with certain named White House officials. The Department denied Safire's FOIA request by letter of February 11, 1976. The Department letter reasoned that the requested notes had been made while Kissinger was National Security Adviser and therefore were not agency records subject to FOIA disclosure.3 11 The second FOIA request was filed on December 28 and 29, 1976, by the Military Audit Project (MAP) after Kissinger publicly announced the gift of his telephone notes to the United States and their placement in the Library of Congress. The MAP request, filed with the Department of State, sought records of all Kissinger's conversations made while Secretary of State and National Security Adviser. On January 18, 1977, the Legal Adviser of the Department of State denied the request on two grounds. First, he found that the notes were not agency records. Second, the deposit of the notes with the Library of Congress prior to the request terminated the Department's custody and control. The denial was affirmed on administrative appeal. 12 The third FOIA request was filed on January 13, 1977, by the Reporters Committee for Freedom of the Press (RCFP), the American Historical Association, the American Political Science Association, and a number of other journalists (collectively referred to as the RCFP requesters). This request also sought production of the telephone notes made by Kissinger both while he was National Security Adviser and Secretary of State. The request was denied for the same reasons given to the MAP requesters. 13 The United States has taken some action to seek recovery of the notes for record processing. On January 4, 1977, the Government Archivist wrote to Kissinger, requesting that he be permitted to inspect the telephone notes so that he could determine whether they were Department records, and to determine whether Kissinger had authority to remove them from Department custody. The State Department Legal Adviser, however, analyzed the Archivist's request and issued a memorandum concluding that so long as extracts of the official business contained in the notes were filed as agency records, Kissinger had complied with the Department's regulations. The Legal Adviser also concluded that the inspection procedures suggested by the Archivist would compromise the Department's policy of respecting the privacy of such secretarial notes and would discourage the creation of historical materials in the first instance. On January 18, 1977, Kissinger replied to the Archivist, declining to permit access. 14 The Archivist renewed his request for an inspection on February 11, 1977, by which time Kissinger was no longer Secretary of State. With the request, he enclosed a memorandum of law prepared by the General Counsel of the GSA concluding that the materials in question might well be records rather than personal files and that the Archivist was entitled to inspect them under the Federal Records and Records Disposal Acts, 44 U.S.C. §§ 2901-2909, 3101-3107; 44 U.S.C. §§ 3301-3314 (1976 ed. and Supp. II). Kissinger did not respond to the Archivist's second request. C 15 Proceedings in the United States District Court for the District of Columbia commenced February 8, 1977. The RCFP requesters and Safire instituted an action under the FIOA, seeking enforcement of their FOIA requests. On March 8, 1977, MAP filed a similar suit. Both suits named Kissinger, the Library of Congress, the Secretary of State and the Department of State as defendants. The plaintiffs sought a judgment declaring that the summaries were agency records that had been unlawfully removed and were being improperly withheld. Plaintiffs requested as ultimate relief that the court require the Library to return the transcripts to the Department with directions to process them for disclosure under the FOIA. 16 Cross-motions for summary judgment were filed by all plaintiffs and by Kissinger. The District Judge ruled in plaintiffs' favor as to transcripts produced while Kissinger was Secretary of State, but denied relief as to transcripts of conversations produced while Kissinger was Special Assistant to the President. The court first found that the transcripts of telephone conversations were "agency records" subject to disclosure under the FOIA. The court also found that Kissinger had wrongfully removed these records by not obtaining the prior approval of the Administrator of General Services. The court recognized that the FOIA did not directly provide for relief since the records were in the custody of the Library of Congress, which is not an "agency" under the Act. Nevertheless, the court held that the FOIA permitted the court to invoke its equitable powers "to order the return of wrongfully removed agency documents where a statutory retrieval action appears unlikely." 17 An order was entered requiring the Library to return the documents to the Department of State; requiring the Department of State to determine which of the summaries are exempt from disclosure under the FOIA, and to provide the required materials to the plaintiffs. The court denied the production of summaries made during Kissinger's tenure as National Security Adviser on the basis of a mistaken assumption that plaintiffs had withdrawn their request for these summaries. 18 Both Kissinger and the private parties appealed from the lower court judgment. The Court of Appeals, without discussion, affirmed the trial court judgment ordering production of the summaries made while Kissinger was Secretary of State. The Court of Appeals also held that the summaries made during Kissinger's service as National Security Adviser need not be produced. The court found that this request had not been withdrawn, and reasoned that three considerations supported nonproduction: (1) the FOIA does not cover those Presidential advisers "who are so close to him as to be within the White House"; (2) the relocation of the transcripts to the State Department did not bring them within its disclosure responsibilities under the FOIA; and (3) the fact that portions of the transcripts may reflect the affairs of the NSC, an agency to which the FOIA does apply, provided no basis for disclosure in the absence of an FOIA request directed to that agency. 19 Kissinger filed a petition for certiorari requesting this Court to review the Court of Appeals' determination that the State Department had improperly withheld agency records, thereby permitting their production from the Library of Congress. The RCFP requesters filed a cross-petition seeking review of that court's judgment denying production of the conversations transcribed while Kissinger served as National Security Adviser. We granted both petitions, 441 U.S. 904, 99 S.Ct. 1990, 60 L.Ed.2d 372, and we now affirm in part and reverse in part. II 20 We first address the issue presented by Kissinger—whether the District Court possessed the authority to order the transfer of that portion of the deeded collection, including the transcripts of all conversations Kissinger made while Secretary of State, from the Library of Congress to the Department of State at the behest of the named plaintiffs. The lower courts premised this exercise of jurisdiction on their findings that the papers were "agency records" and that they had been wrongfully removed from State Department custody in violation of the Federal Records Disposal Act, 44 U.S.C. § 3303. We need not, and do not, decide whether the telephone notes are agency records, or were wrongfully removed, for even assuming an affirmative answer to each of these questions, the FOIA plaintiffs were not entitled to relief. 21 The question must be, of course, whether Congress has conferred jurisdiction on the federal courts to impose this remedy. Two statutory schemes are relevant to this inquiry. First, if Congress contemplated a private right of action under the Federal Records Act and the Federal Records Disposal Act, this would in itself justify the remedy imposed if Kissinger in fact wrongfully removed the documents. In the alternative, the lower court order could be sustained if authorized by the FOIA. A. 22 The Federal Records Act of 1950, 44 U.S.C. § 2901 et seq., authorizes the "head of each Federal agency" to establish a "records management program" and to define the extent to which documents are "appropriate for preservation" as agency records. The records management program requires that adequate documentation of agency policies and procedures be retained. The Records Disposal Act, a complementary records management Act, provides the exclusive means for record disposal. 44 U.S.C. § 3314. 23 Under the Records Disposal Act, once a document achieves the status of a "record" as defined by the Act, it may not be alienated or disposed of without the consent of the Administrator of General Services, who has delegated his authority in such matters to the Archivist of the United States. 44 U.S.C. §§ 3303, 3303a, 3308-3314 (1976 ed. and Supp. II); GSA, Delegations of Authority Manual, ADM P. 5450.39A. Thus if Kissinger's telephone notes were "records" within the meaning of the Federal Records Act, a question we do not reach, then Kissinger's transfer might well violate the Act since he did not seek the approval of the Archivist prior to transferring custody to himself and then to the Library of Congress. We assume such a wrongful removal arguendo for the purposes of this opinion. 24 But the Federal Records Act establishes only one remedy for the improper removal of a "record" from the agency. The head of the agency is required under 44 U.S.C. § 3106 to notify the Attorney General if he determines or "has reason to believe" that records have been improperly removed from the agency. The Administrator of General Services is obligated to assist in such actions. 44 U.S.C. § 2905. At the behest of these administrators, the Attorney General may bring suit to recover the records. 25 The Archivist did request return of the telephone notes from Kissinger on the basis of his belief that the documents may have been wrongfully removed under the Act. Despite Kissinger's refusal to comply with the Archivist's request, no suit has been instituted against Kissinger to retrieve the records under 44 U.S.C. § 3106. 26 Plaintiff requesters effectively seek to enforce these requirements of the Acts by seeking the return of the records to State Department custody. No provision of either Act, however, expressly confers a right of action on private parties. Nor do we believe that such a private right of action can be implied. 27 This Court has spent too many pages identifying the factors relevant to uncovering congressional intent to imply a private cause of action to belabor the topic here.4 Our most recent pronouncement on the subject, Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), readily disposes of the question. First, the language of the Records Acts merely "proscribes certain conduct" and does not "create or alter any civil liabilities." Id., at 19, 100 S.Ct., at 247. The Records Act also expressly provides administrative remedies for violations of the duties it imposes, implicating our conclusion in Transamerica Mortgage that it is "an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." Ibid. Finally, the legislative history does not detract from the inference to be drawn from congressional silence, but rather confirms that such silence is purposeful. 28 The legislative history of the Acts reveals that their purpose was not to benefit private parties, but solely to benefit the agencies themselves and the Federal Government as a whole. The Senate Report to the Federal Records Act of 1950 reveals this focus. S.Rep.No.2140, 81st Cong., 2d Sess., 4 (1950), U.S.Code Cong.Serv.1950, pp. 3547, 3550. The Report states: 29 "It is well to emphasize that records come into existence, or should do so, not in order to fill filing cabinets or occupy floor space, or even to satisfy the archival needs of this and future generations, but first of all to serve the administrative and executive purposes of the organization that creates them. There is danger of this simple, self-evident fact being lost for lack of emphasis. The measure of effective records management should be its usefulness to the executives who are responsible for accomplishing the substantive purposes of the organization. . . . [The] first interest is in the establishment of a useful system of documentation that will enable [the executive] to have the information he needs available when he needs it." 30 Congress expressly recognized the need for devising adequate statutory safeguards against the unauthorized removal of agency records, and opted in favor of a system of administrative standards and enforcement. See U.S. Commission on Organization of the Executive Branch of the Government, Task Force Report on Records Management 27 (1949). Thus, regardless of whether Kissinger has violated the Records and Records Disposal Acts, Congress has not vested federal courts with jurisdiction to adjudicate that question upon suit by a private party. That responsibility is vested in the administrative authorities.5 B 31 The plaintiff requesters contend that even though the Federal Records and Records Disposal Acts do not contemplate a private right of action, the FOIA nevertheless supplies what was missing from those Acts—congressional intent to permit private actions to recover records wrongfully removed from Government custody. We are, however, unable to read the FOIA as supplying that congressional intent. 32 The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. That statutory scheme authorizes federal courts to ensure private access to requested materials when three requirements have been met. Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) "improperly"; (2) "withheld"; (3) "agency records." Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation. We find it unnecessary to decide whether the telephone notes were "agency records" since we conclude that a covered agency—here the State Department—has not "withheld" those documents from the plaintiffs. We also need not decide the full contours of a prohibited "withholding." We do decide, however, that Congress did not mean that an agency improperly withholds a document which has been removed from the possession of the agency prior to the filing of the FOIA request. In such a case, the agency has neither the custody or control necessary to enable it to withhold. 33 In looking for congressional intent, we quite naturally start with the usual meaning of the word "withhold" itself. The requesters would have us read the "hold" out of "withhold." The act described by this word presupposes the actor's possession or control of the item withheld. A refusal to resort to legal remedies to obtain possession is simply not conduct subsumed by the verb "withhold." 34 The Act and its legislative history do not purport to define the word. An examination of the structure and purposes of the Act, however, indicates that Congress used the word in its usual sense. An agency's failure to sue a third party to obtain possession is not a withholding under the Act. 35 Several sources suggest directly that agency possession or control is prerequisite to triggering any duties under the FOIA. In the debates, the Act was described as ensuring "access to the information possessed by [Government] servants." (Emphasis added.) 112 Cong.Rec. 13652 (1966), reprinted in Freedom of Information Act Source Book, S.Doc. No. 93-82, p. 69 (1974) (remarks of Rep. Monagan) (hereinafter Source Book I). 36 Following FOIA's enactment in 1966, the Attorney General issued guidelines for the use of all federal departments and agencies in complying with the new statute. The guidelines state that FOIA 37 "refers, of course, only to records in being and in the possession or control of an agency. . . . [It] imposes no obligation to compile or procure a record in response to a request." Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 23-24 (June 1967), Source Book I, pp. 222-223. 38 Most courts which have considered the question have concluded that the FOIA is only directed at requiring agencies to disclose those "agency records" for which they have chosen to retain possession or control.6 See also NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978), describing the Act as reaching "records and material in the possession of federal agencies. . . ." 39 The conclusion that possession or control is a prerequisite to FOIA disclosure duties is reinforced by an examination of the purposes of the Act. The Act does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.7 It has been settled by decision of this Court that only the Federal Records Act, and not the FOIA, requires an agency to actually create records, even though the agency's failure to do so deprives the public of information which might have otherwise been available to it. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-162, 95 S.Ct. 1504, 1521-1522, 44 L.Ed.2d 29 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 192, 95 S.Ct. 1491, 1504, 44 L.Ed.2d 57 (1975). 40 If the agency is not required to create or to retain records under the FOIA, it is somewhat difficult to determine why the agency is nevertheless required to retrieve documents which have escaped its possession, but which it has not endeavored to recover. If the document is of so little interest to the agency that it does not believe the retrieval effort to be justified, the effect of this judgment on an FOIA request seems little different from the effect of an agency determination that a record should never be created, or should be discarded.8 41 The procedural provisions of the Act, in particular, reflect the nature of the obligation which Congress intended to impose on agencies in the production of agency records. First, Congress has provided that agencies normally must decide within 10 days whether to comply with an FOIA request unless they can establish "unusual circumstances" as defined in the Act. 5 U.S.C. §§ 552(a)(6)(A), (B). The "unusual circumstances" specified by the Act include "the need to search for and collect the requested records from field facilities and other establishments that are separate from the office processing the request." This exception for searching and collecting certainly does not suggest that Congress expected an agency to commence lawsuits in order to obtain possession of documents requested, particularly when it is seen that where an extension is allowable, the period of the extension is only for 10 days. Either Congress was operating under the assumption that lawsuits could be waged and won in 10 days, or it was operating under the assumption that agencies would not be obligated to file lawsuits in order to comply with FOIA requests. 42 A similarly strong expression of congressional expectations emerges in 5 U.S.C. § 552(a)(4)(A) providing for recovery of certain costs incurred in complying with FOIA requests. This section was included in the Act in order to reduce the burdens imposed on the agencies. The agency is authorized to establish fees for the "direct costs" of "document search and duplication." The costs allowed reflect the congressional judgment as to the nature of the costs which would be incurred. Congress identified these costs, and thus the agency burdens, as consisting of "search" and "duplication." During the enactment of the 1974 amendments to the FOIA, it was emphasized that agencies generally are not obligated to provide extensive services in fulfilling FOIA requests. S.Rep.No.93-854, p. 12 (1974), reprinted in House Committee on Government Operations & Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974: Source Book, 94th Cong., 1st Sess., 164 (Joint Comm. Print 1975) (hereinafter Source Book II). When agencies do provide additional services in conducting a search, they are clearly authorized to allocate that cost to the requester. Ibid. It is doubtful that Congress intended that a "search" include legal efforts to retrieve wrongfully removed documents, since such an intent would authorize agency assessment to the private requester of its litigation costs in such an endeavor. 43 It is therefore clear that Congress never intended when it enacted the FOIA, to displace the statutory scheme embodied in the Federal Records Act and the Federal Records Disposal Act providing for administrative remedies to safeguard against wrongful removal of agency records as well as to retrieve wrongfully removed records. This result is buttressed by our decisions in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), and NLRB v. Robbins Tire & Rubber Co., supra, both demonstrating reluctance to construe the FOIA as silently departing from prior longstanding practice. Bannercraft, supra, of course held that Congress intended federal district courts to retain traditional equitable jurisdiction in adjudicating FOIA actions. But historic equitable practice has long recognized that an individual does not improperly withhold a document sought pursuant to a subpoena by his refusal to sue a third party to obtain or recover possession. Amey v. Long, 9 East 473, 482, 103 Eng.Rep. 653, 657 (K.B.1808). C 44 This construction of "withholding" readily disposes of the RCFP and MAP requests. Both of these requests were filed after Kissinger's telephone notes had been deeded to the Library of Congress.9 The Government, through the Archivist, has requested return of the documents from Kissinger. The request has been refused. The facts make it apparent that Kissinger, and the Library of Congress as his donee, are holding the documents under a claim of right. Under these circumstances, the State Department cannot be said to have had possession or control of the documents at the time the requests were received. It did not, therefore, withhold any agency records, an indispensable prerequisite to liability in a suit under the FOIA. III 45 The Safire request raises a separate question. At the time when Safire submitted his request for certain notes of Kissinger's telephone conversations, all the notes were still located in Kissinger's office at the State Department. For this reason, we do not rest our resolution of his claim on the grounds that there was no withholding by the State Department. As outlined above, the Act only prohibits the withholding of "agency records." We conclude that the Safire request sought disclosure of documents which were not "agency records" within the meaning of the FOIA. 46 Safire's request sought only a limited category of documents. He requested the Department to produce all transcripts of telephone conversations made by Kissinger from his White House office between January 21, 1969, and February 12, 1971, in which (1) Safire's name appeared; or (2) in which Kissinger discussed the subject of information "leaks" with General Alexander Haig, Attorney General John Mitchell, President Richard Nixon, J. Edgar Hoover, or any other official of the FBI. 47 The FOIA does render the "Executive Office of the President" an agency subject to the Act. 5 U.S.C. § 552(e). The legislative history is unambiguous, however, in explaining that the "Executive Office" does not include the Office of the President. The Conference Report for the 1974 FOIA Amendments indicates that "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President" are not included within the term "agency" under the FOIA. H.R.Conf.Rep.No.93-1380, p. 15 (1974), reprinted in Sourcebook II, p. 232. Safire's request was limited to a period of time in which Kissinger was serving as Assistant to the President. Thus these telephone notes were not "agency records" when they were made. 48 The RCFP requesters have argued that since some of the telephone notes made while Kissinger was adviser to the President may have related to the National Security Council they may have been National Security Council records and therefore subject to the Act. See H.R.Rep.No.93-876, p. 8 (1974), U.S.Code Cong. & Admin.News 1974, p. 6267, Sourcebook II, p. 128, indicating that the National Security Council is an executive agency to which the FOIA applies. We need not decide when records which, in the words of the RCFP requesters, merely "relate to" the affairs of an FOIA agency become records of that agency. To the extent Safire sought discussions concerning information leaks which threatened the internal secrecy of White House policymaking, he sought conversations in which Kissinger had acted in his capacity as a Presidential adviser, only. 49 Nor does his request for conversations in which his name appeared require a different conclusion. Safire never identified the request as implicating any National Security Council records. The request did not mention the National Security Council or any subject relating to the NSC. To the contrary, he requested to see transcripts Kissinger made from his White House office. Moreover, after the State Department denied the request on the grounds that these were White House records, Safire's appeal argued these were State Department records, again never suggesting they were NSC records. The FOIA requires the requester to adequately identify the records which are sought. 5 U.S.C. § 552(a)(3)(A). Safire's request did not describe the records as relating to the NSC or in any way put the agency on notice that it should refer the request to the NSC. See 5 U.S.C. § 552(a)(6)(B)(iii). Therefore, we also need not address the issue of when an agency violates the Act by refusing to produce records of another agency, or failing to refer a request to the appropriate agency. 50 The RCFP requesters nevertheless contend that if the transcripts of telephone conversations made while adviser to the President were not then "agency records," they acquired that status under the Act when they were removed from White House files and physically taken to Kissinger's office at the Department of State. We simply decline to hold that the physical location of the notes of telephone conversations renders them "agency records." The papers were not in the control of the State Department at any time. They were not generated in the State Department. They never entered the State Department's files, and they were not used by the Department for any purpose. If mere physical location of papers and materials could confer status as an "agency record" Kissinger's personal books, speeches, and all other memorabilia stored in his office would have been agency records subject to disclosure under the FOIA. It requires little discussion or analysis to conclude that the lower courts correctly resolved this question in favor of Kissinger. See also Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 978, 63 L.Ed.2d 293 (1980). 51 Accordingly, we reverse the order of the Court of Appeals compelling production of the telephone manuscripts made by Kissinger while Secretary of State and affirm the order denying the requests for transcripts produced while Kissinger served as National Security Adviser. 52 It is so ordered. 53 Mr. Justice MARSHALL took no part in the consideration or decision of these cases. 54 Mr. Justice BLACKMUN took no part in the decision of these cases. 55 Mr. Justice BRENNAN, concurring in part and dissenting in part. 56 Today's decision explores hitherto uncharted territory in a complicated statutory scheme. I cannot agree with what is to me the Court's crabbed interpretation of "improper withholding" under the Freedom of Information Act (FOIA). At the same time, I am not without some uncertainty about the contours of the "improper withholding" standard. Accordingly, although the result reached by my Brother Stevens strikes me as the most workable for the present, I write separately to articulate some ideas on this difficult problem. 57 As an abstract matter, I concur in the Court's view that FOIA's reach should not be conditioned upon the legality of a documents transfer under the Federal Records and Records Disposal Acts. 44 U.S.C. § 2901 et seq.; 44 U.S.C. § 3301 et seq (1976 ed. and Supp. II). These Acts establish a fairly comprehensive scheme for internal records management, one element of which is an administrative process for regulating and enforcing records disposal standards. Thus, the "legality" of a document transfer for purposes of the Records Acts is, in a practical sense, partly a matter of administrative discretion. Conceptually, it seems strange to import such a discretionary factor into the legal standards that govern private rights of action under FOIA. And it is not surprising that the Records Acts and FOIA fail to mesh: The former scheme is evidently directed toward fostering administrative interests, while the latter is definitely designed to serve the needs of the general public. Consequently, the Records Acts either may fail to promote the interests embodied in FOIA, or may address concerns that are irrelevant to FOIA.1 58 Although I agree that the Records Acts cannot be neatly interpolated into FOIA, I part company with the Court when it concludes that FOIA does not reach records that have been removed from a federal agency's custody. If FOIA is to be more than a dead letter, it must necessarily incorporate some restraint upon the agency's powers to move documents beyond the reach of the FOIA requester. Even the Court's opinion implies—as I think it must that an agency would be improperly withholding documents if it failed to take steps to recover papers removed from its custody deliberately to evade an FOIA request. Ante, at 155, n. 9. Beyond that minimal rule, I would think it also plainly unacceptable for an agency to devise a records routing system aimed at frustrating FOIA requests in general by moving documents outside agency custody with unseemly haste. 59 Indeed, I would go further. If the purpose of FOIA is to provide public access to the records incorporated into Government decisionmaking, see Forsham v. Harris, 445 U.S. 169, at 188, 100 S.Ct. 978, at 988, 63 L.Ed.2d 293 (BRENNAN, J., dissenting), then agencies may well have a concomitant responsibility to retain possession of, or control over, those records.2 But, as with so many questions that the Court must resolve, the difficulty is where to draw the line. We could hardly assume that Congress intended agencies to be prevented from surrendering all documents that might be of interest to requesters—so broad a rule would not only swamp the agencies with paper, but would also seem incompatible with the records management goals of the Records Acts. See S. Rep. No. 2140, 81st Cong., 2d Sess., 4 (1950). Perhaps the appropriate test would take into account the importance of specific records; it might also consider the length of time records would be held, and the historical frequency of requests for documents of a particular type. To suggest the elements of such a test, however, is to expose how ill-suited a court is to define them adequately. It is Congress which has the resources and responsibility to fashion a rule about document retention that comports with the objectives of the FOIA. 60 Although one might hope that Congress will soon address this problem, we must decide the case currently before us. I have little difficulty concluding that records which should have been retained for FOIA purposes may be reached under FOIA even though they have already passed beyond the agency's control.3 In the absence of an analytically satisfying standard for determining which records should be retained, however, it is necessary to resolve this case by looking to an approach that is currently practicable. My Brother Stevens' position fairly fits this prescription. While turning an FOIA suit upon the Records Acts is, as I have recognized, conceptually problematic, the records statutes do formulate document retention criteria that are not unduly burdensome and that carry a congressional imprimatur. 61 Accordingly, I agree with Mr. Justice STEVENS' conclusion with respect to the "improper withholding" issue, and therefore dissent from Part II of the Court's opinion. 62 Mr. Justice STEVENS, concurring in part and dissenting in part. 63 As the Court recognizes, the requesters are entitled to prevail in this FOIA action if the State Department "has (1) 'improperly'; (2) 'withheld'; (3) 'agency records.' " Ante, at 150. The Court assumes, without deciding, that "agency records" have been requested and then concludes that no such records have been "withheld." The Court states, and I agree, that an agency cannot "withhold" documents unless it has either custody or control of them. It then goes on, however, to equate "custody" and "control" with physical possession, holding that FOIA is simply inapplicable to any "document which has been removed from the possession of the agency prior to the filing of the FOIA request." Ibid.1 64 I cannot agree that this conclusion is compelled by the plain language of the statute; moreover, it seems to me wholly inconsistent with the congressional purpose underlying the Freedom of Information Act. The decision today exempts documents that have been wrongfully removed from the agency's files from any scrutiny whatsoever under FOIA. It thus creates an incentive for outgoing agency officials to remove potentially embarrassing documents from their files in order to frustrate future FOIA requests. It is the creation of such an incentive, which is directly contrary to the purpose of FOIA, rather than the result in this particular case,2 that prompts me to write in dissent. 65 In my judgment, a "withholding" occurs within the meaning of FOIA whenever an agency declines to produce agency records which it has a legal right to possess or control. A determination that documents have been withheld does not end the inquiry, of course, for a court must still determine whether the withholding was "improper" for purposes of the Act. Thus, in my view, correct analysis requires us to confront three separate questions in the following order: (1) are any of the requested documents "agency records"? (2) if so, have any of them been withheld because they are in the legal custody of the agency? and (3) if so, was the withholding improper? 66 * Everyone seems to agree that the summaries of Dr. Kissinger's State Department telephone conversations3 should be considered "agency records" subject to disclosure under FOIA if they were "agency records" under the definitions set forth in the Federal Records Act (FRA). The parties disagree, however, as to the proper application of that Act to the facts of this case. The requesters argue that the summaries were "records" under the FRA because they were documents "appropriate for preservation" by the agency under 44 U.S.C. § 3301. Dr. Kissinger, on the other hand, argues that the summaries were personal papers which he could dispose of at will under the FRA and which were never subject to disclosure under FOIA. The Government takes an intermediate position, arguing that the summaries were "agency records" only to the extent that they contained significant information that was not reflected in other agency records.4 67 I cannot accept Dr. Kissinger's argument that the summaries are private papers. As the District Court noted, they were made in the regular course of conducting the agency's business, were the work product of agency personnel and agency assets, and were maintained in the possession and control of the agency prior to their removal by Dr. Kissinger. They were also regularly circulated to Dr. Kissinger's immediate staff and presumably used by the staff in making day-to-day decisions on behalf of the agency. Finally, Dr. Kissinger himself recognized that the State Department continued to have an interest in the summaries even after they had been removed, since he had a State Department employee review them in order to extract information that was not otherwise in the agency's files. App. 248a. Under these circumstances, I find it difficult to believe that none of the summaries was "appropriate for preservation" by the agency. Thus, although a remand might be necessary, as the Government suggests, see n. 4, supra, to determine which summaries were agency records and which were not, it is clear that at least some of them fell within that category at the time Dr. Kissinger removed them from his files at the State Department.5 II 68 The second question to be considered is whether the State Department continued to have custody or control of the telephone summaries after they were removed from its files so that its refusal to take steps to regain them should be deemed a "withholding" within the meaning of the Freedom of Information Act. As I stated at the outset, I do not agree with the Court that the broad concepts of "custody" and "control" can be equated with the much narrower concept of physical possession.6 In my view, those concepts should be applied to bring all documents within the legal custody or control of the agency within the purview of FOIA. Thus, if an agency has a legal right to regain possession of documents wrongfully removed from its files, it continues to have custody of those documents. If it then refuses to take any steps whatsoever to demand, or even to request, that the documents be returned, then the agency is "withholding" those documents for purposes of FOIA. 69 In this case, I think it is rather clear that the telephone summaries were wrongfully removed from the State Department's possession.7 Under these circumstances, the State Department's failure even to request their return8 constituted a "withholding" for purposes of FOIA. III 70 The third and most difficult question is whether the State Department's "withholding" was "improper." In my view, the answer to that question depends on the agency's explanation for its failure to attempt to regain the documents. If the explanation is reasonable, then the withholding is not improper. For example, I would not find an agency's inaction improper in a case in which it simply did not know where the documents were located or had no interest whatsoever in retrieving them. The FOIA does not require federal agencies to engage in prolonged searches for documents or institute legal proceedings that will not yield any appreciable benefits to the agency. 71 On the other hand, if the agency is unable to advance a reasonable explanation for its failure to act, a presumption arises that the agency is motivated by a desire to shield the documents from FOIA scrutiny.9 Thus, if the agency believed or had reason to believe that it had a legal right to the documents and that the documents were still valuable for its own internal purposes and nevertheless did not attempt to regain them, its inaction should be deemed an improper withholding. 72 In this case the State Department refused the FOIA requests on the ground that the telephone summaries were not agency records and, in any event, were no longer within the agency's custody or control. By the time the FOIA actions were filed, there was substantial reason for doubting the Department's resolution of the first issue, inasmuch as the General Counsel of GSA had rendered a legal opinion that the documents were probably agency records and should be returned to the Government for proper archival screening.10 Because of their very nature, there was also substantial reason for believing that, if they were agency records, the summaries would have to be considered valuable documents. Finally, the fact that the documents had been removed by the head of the agency shortly before the expiration of his term of office raised an inference that the removal had been motivated by a desire to avoid FOIA disclosure. Under these circumstances, it is at least arguable that the continued inaction of the State Department, contrary to the views of the Archivist, was improper. 73 Accordingly, I believe the District Court had jurisdiction under FOIA to determine (a) whether the telephone summaries were in fact agency records and (b) if so, whether the State Department's failure to seek return of the documents was improper. The court's disposition of those issues seems to me to have been somewhat premature, however. Once the litigation began, the State Department changed its position and contended that it could not determine whether it should seek return of the summaries without first inspecting them. Pursuant to an agreement with Dr. Kissinger, the Department and the Archivist began the process of sifting through the records. That process had not yet been completed when the District Court handed down its decision. Because the agency's informed opinion of the documents' status and their value was in my view relevant to a determination of whether its actions were "improper," I think the court's order was premature. I would therefore remand to give the Government an opportunity to finish its examination of the documents. 1 Tapes and stenographic notes were always destroyed immediately after they were summarized or transcribed. 2 This conclusion was premised on the Adviser's finding that the notes were covered by a Department regulation providing that a retiring official may retain papers "explicitly designated or filed as personal at the time of origin or receipt." 5 FAM § 417.1(a) (1974). 3 Safire filed an administrative appeal from this decision, contending that the notes were agency records by virtue of their relocation to the State Department. The appeal was denied. 4 See Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). 5 We need not decide what remedies might be available to private plaintiffs complaining that the administrators and the Attorney General have breached a duty to enforce the Records Act, since no such action was brought here. See 5 U.S.C. §§ 704, 701(a)(2), 706(1). 6 See Nolen v. Rumsfeld, 535 F.2d 890, 891 (CA5 1976) (suit "seeking production of missing records . . . is not within the purview of the Freedom of Information Act"), cert. denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 555 (1977); Nichols v. United States, 325 F.Supp. 130, 137 (Kan.1971), aff'd, 460 F.2d 671 (CA10) ("the Court may not require production of records not in [the] custody or control of an agency"), cert. denied, 409 U.S. 966, 93 S.Ct. 268, 34 L.Ed.2d 232 (1972); Ciba-Geigy Corp. v. Mathews, 428 F.Supp. 523, 531 (SDNY 1977) ("[T]he government cannot be compelled to obtain possession of documents not under its control or furnish an opinion when none is written"). 7 Congress has imposed some very limited record-creating obligations with regard to indexing under the FOIA. See 5 U.S.C. § 552(a)(2). 8 This is not to suggest that this discretionary determination by the agency relieves it of other obligations imposed by the records management Acts. The observation goes only to the nature of the public right of access provided by the FOIA. 9 There is no question that a "withholding" must here be gauged by the time at which the request is made since there is no FOIA obligation to retain records prior to that request. This temporal factor has always governed requests under the subpoena power, Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802 (1935), as well as under other access statutes. See Fed.Rules Civ.Proc. 34, 45. We need not decide whether this standard might be displaced in the event that it was shown that an agency official purposefully routed a document out of agency possession in order to circumvent a FOIA request. No such issue is presented here. We also express no opinion as to whether an agency withholds documents which have been wrongfully removed by an individual after a request is filed. 1 For example, a document transfer may comport with the formal requirements of the Records Acts, and yet be motivated by the desire to avoid a pending FOIA request. 2 This notion is not incompatible with NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-162, 95 S.Ct. 1504, 1521-1522, 44 L.Ed.2d 29 (1975), and Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 192, 95 S.Ct. 1491, 1504, 44 L.Ed.2d 57 (1975), which held that FOIA does not compel agencies to write opinions where not otherwise required. The FOIA neither compels the Government to conduct research on behalf of private citizens, nor duplicates administrative law requirements of adequate explanation for Government action, see id., at 191-192, 95 S.Ct., at 1504. What the Act does mandate is exposure of the research and explanations which the Government has chosen to memorialize; an agency's obligation to retain records, therefore, may be inferred from FOIA without contradicting the principle that agencies need not create records. 3 This will not necessarily entail the agency's litigating against the third party in possession of the documents, as the Court suggests. Rather, the third party might be joined in the FOIA suit. Cf. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 18-20, 94 S.Ct. 1028, 1037-1039, 39 L.Ed.2d 123 (1974). 1 The Court states that "[i]n such a case, the agency has neither the custody nor control necessary to enable it to withhold." Ante, at 150-151. 2 I do not mean to imply that there was any improper motive for Dr. Kissinger's removal of the documents in this case. Nor do I believe that the decision the Court reaches today will necessarily lessen the requesters' access to the information contained in the summaries of Dr. Kissinger's telephone conversations. Many, if not all, of the significant decisions reflected in those summaries are also reflected in other agency records, which are still in the State Department's possession. Also, it is not clear how many of the summaries, even if subject to FOIA, would be exempt from production because they contain either classified or purely personal information. See 5 U.S.C. §§ 552(b)(1) and (b)(6). 3 I agree with Part III of the Court's opinion that the summaries of Dr. Kissinger's telephone conversations when he was a Presidential adviser were not "agency records" subject to disclosure under FOIA when they were created and did not become "agency records" when they were later stored in Dr. Kissinger's files at the State Department. 4 The Government argues that Dr. Kissinger had an obligation under the State Department's records management program to record permanently all oral "[d]ecisions, commitments, and discussions of any significance." 5 FAM § 432.2-1 (1974). Thus, he should have extracted all significant information pertaining to agency business from his telephone summaries and entered that information in the agency's permanent records. To the extent that he did not do so, the telephone summaries remain the sole written evidence of that information and thus should be considered "agency records." However, to the extent that Dr. Kissinger saw to it that the information was properly recorded elsewhere, the Government argues that the summaries became "non-record materials" which could be disposed of with the agency's permission. (The Government concedes that some nonrecord materials may be subject to disclosure under FOIA while in the agency's possession; it takes the position, however, that such materials are not subject to either the FOIA or the FRA after they have been relinquished.) Because it believes that the degree of duplication between the summaries and records still in the agency's possession cannot be determined from the evidence presented in this case, the Government argues that a remand would be appropriate if the issue of whether the summaries were "agency records" must be decided. 5 The fact that extracts were not made until after the summaries had been transferred to the Library of Congress indicates that, even under the Government's view, some of the summaries must have been "agency records" at the time they were removed from the State Department. Moreover, during the course of the litigation Dr. Kissinger granted permission to the Archivist and the State Department to review the summaries in order to determine whether they should seek their return as "agency records" despite the existence of the summaries. Brief for Federal Parties 14, n. 11. 6 The Court's reference to subpoenas is instructive. See ante, at 154. Under Rule 34 of the Federal Rules of Civil Procedure, a party is required to produce requested documents if they are within his "possession, custody or control." The same standard applies to subpoenas duces tecum issued under Rule 45, see 9 C. Wright & A. Miller, Federal Practice and Procedure § 2454, p. 425 (1971). In construing these Rules the courts have rejected a narrow physical-possession test, focusing instead on whether the subpoenaed party has a legal right to custody or control of the documents in question. See, e. g., United States v. International Business Machines Corp., 71 F.R.D. 88, 91 (SDNY 1976); Buckley v. Vidal, 50 F.R.D. 271, 274 (SDNY 1970); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2210 (1970). Thus, if this case involved compliance with a discovery request rather than an FOIA request, I doubt very much that the agency could justify its failure to produce the documents on the ground that the agency head had wrongfully removed them from the agency's physical possession just before the subpoena was served. 7 Once Dr. Kissinger's argument that the summaries were private papers is rejected, it becomes clear that the Federal Records Act and Records Disposal Act were violated by the transfer of the papers to the Library of Congress. If the summaries were agency records, as the requesters argue, then the State Department could not properly relinquish them without obtaining the approval of the General Services Administration. Under the Records Disposal Act GSA's approval would be conditioned on a showing that the documents were no longer needed in the "transaction of its current business" and did not have "sufficient administrative, legal, research, or other value to warrant their further preservation by the Government." 44 U.S.C. §§ 3303, 3303a (1976 ed. and Supp. II). If, on the other hand, the summaries could have been converted from "records" to "non-record materials" as the Government suggests, the State Department still would have been required to take steps prior to relinquishing them to assure itself that all significant information had been properly extracted for inclusion in more formal State Department files. The fact that such steps were not taken until after the summaries had been deeded over to the Library of Congress makes their removal from the agency by Dr. Kissinger unlawful even under the Government's theory. 8 The Archivist did make several requests for the documents. App. 99a-116a. The fact that Dr. Kissinger refused those requests, however, does not demonstrate that a similar request by the State Department would also have been refused. 9 The Court recognizes that there might be situations where documents were removed from the agency in order to avoid FOIA requests and suggests that its strict "physical-possession" standard might be "displaced" under these circumstances, ante, at 155, n. 9. As a practical matter, however, the Court's suggestion provides little comfort to the intended beneficiaries of the Act. For, if an agency can make a sufficient response to a request by simply denying physical possession, it will be a rare case indeed in which the ordinary citizen can overcome that denial by proof of improper motivation. Moreover, it would be unseemly to invite litigation and discovery into the subjective motivation of agency officials responsible for processing the flood of paper that threatens to engulf today's bureaucracy. Focusing attention on the agency's reason for not reacquiring the documents, rather than on the individual employee's motive for removing them in the first place, seems to me to be a preferable way of eliminating the incentive to transfer documents to avoid disclosure under FOIA. 10 GSA, and in particular the Archivist, has supervisory responsibility over the various agencies' records management and disposal programs. See, e. g., 44 U.S.C. §§ 2904, 2906, 3102, 3302, and 3303a (1976 ed. and Supp. II). Thus, an opinion by GSA's General Counsel could be expected to give a more authoritative and impartial view of the technical issue of what constitutes an agency record than an opinion by the State Department's legal counsel, given after the documents had already been removed.

45

63 L.Ed.2d 233 100 S.Ct. 937 445 U.S. 97 CALIFORNIA RETAIL LIQUOR DEALERS ASSOCIATION, Petitioner,v.MIDCAL ALUMINUM, INC., et al. No. 79-97. Argued Jan. 16, 1980. Decided March 3, 1980. Syllabus A California statute requires all wine producers and wholesalers to file fair trade contracts or price schedules with the State. If a producer has not set prices through a fair trade contract, wholesalers must post a resale price schedule and are prohibited from selling wine to a retailer at other than the price set in a price schedule or fair trade contract. A wholesaler selling below the established prices faces fines or license suspension or revocation. After being charged with selling wine for less than the prices set by price schedules and also for selling wines for which no fair trade contract or schedule had been filed, respondent wholesaler filed suit in the California Court of Appeal asking for an injunction against the State's wine-pricing scheme. The Court of Appeal ruled that the scheme restrains trade in violation of the Sherman Act, and granted injunctive relief, rejecting claims that the scheme was immune from liability under that Act under the "state action" doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, and was also protected by § 2 of the Twenty-first Amendment, which prohibits the transportation or importation of intoxicating liquors into any State for delivery or use therein in violation of the State's laws. Held: 1. California's wine-pricing system constitutes resale price maintenance in violation of the Sherman Act, since the wine producer holds the power to prevent price competition by dictating the prices charged by wholesalers. And the State's involvement in the system is insufficient to establish antitrust immunity under Parker v. Brown, supra. While the system satisfies the first requirement for such immunity that the challenged restraint be "one clearly articulated and affirmatively expressed as state policy," it does not meet the other requirement that the policy be "actively supervised" by the State itself. Under the system the State simply authorizes price setting and enforces the prices established by private parties, and it does not establish prices, review the reasonableness of price schedules, regulate the terms of fair trade contracts, monitor market conditions, or engage in any "pointed reexamination" of the program. The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement. Pp. 102-106. 2. The Twenty-first Amendment does not bar application of the Sherman Act to California's wine-pricing system. Pp. 106-114. (a) Although under that Amendment States retain substantial discretion to establish liquor regulations over and above those governing the importation or sale of liquor and the structure of the liquor distribution system, those controls may be subject to the federal commerce power in appropriate situations. Pp. 106-110. (b) There is no basis for disagreeing with the view of the California courts that the asserted state interests behind the resale price maintenance system of promoting temperance and protecting small retailers are less substantial than the national policy in favor of competition. Such view is reasonable and is supported by the evidence, there being nothing to indicate that the wine-pricing system helps sustain small retailers or inhibits the consumption of alcohol by Californians. Pp. 110-114. 90 Cal.App.3d 979, 153 Cal.Rptr. 757, affirmed. William T. Chidlaw, Sacramento, Cal., for petitioner. Jack B. Owens, San Francisco, Cal., for respondents. George J. Roth, Sacramento, Cal., for the State of California, as amicus curiae, by special leave of Court. Mr. Justice POWELL delivered the opinion of the Court. 1 In a state-court action, respondent Midcal Aluminum, Inc., a wine distributor, presented a successful antitrust challenge to California's resale price maintenance and price posting statutes for the wholesale wine trade. The issue in this case is whether those state laws are shielded from the Sherman Act by either the "state action" doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), or § 2 of the Twenty-first Amendment. 2 * Under § 24866(b) of the California Business and Professions Code, all wine producers, wholesalers, and rectifiers must file fair trade contracts or price schedules with the State.1 If a wine producer has not set prices through a fair trade contract, wholesalers must post a resale price schedule for that producer's brands. § 24866(a). No state-licensed wine merchant may sell wine to a retailer at other than the price set "either in an effective price schedule or in an effective fair trade contract . . . ." § 24862 (West Supp.1980). 3 The State is divided into three trading areas for administration of the wine pricing program. A single fair trade contract or schedule for each brand sets the terms for all wholesale transactions in that brand within a given trading area. §§ 24862, 24864, 24865 (West Supp.1980). Similarly, state regulations provide that the wine prices posted by a single wholesaler within a trading area bind all wholesalers in that area. Midcal Aluminum, Inc. v. Rice, 90 Cal.App.3d 979, 983-984, 153 Cal.Rptr. 757, 760 (1979). A licensee selling below the established prices faces fines, license suspension, or outright license revocation. Cal.Bus. & Prof.Code Ann. § 24880 (West Supp.1980).2 The State has no direct control over wine prices, and it does not review the reasonableness of the prices set by wine dealers. 4 Midcal Aluminum, Inc., is a wholesale distributor of wine in southern California. In July 1978, the Department of Alcoholic Beverage Control charged Midcal with selling 27 cases of wine for less than the prices set by the effective price schedule of the E. & J. Gallo Winery. The Department also alleged that Midcal sold wines for which no fair trade contract or schedule had been filed. Midcal stipulated that the allegations were true and that the State could fine it or suspend its license for those transgressions. App. 19-20. Midcal then filed a writ of mandate in the California Court of Appeal for the Third Appellate District asking for an injunction against the State's wine pricing system. 5 The Court of Appeal ruled that the wine pricing scheme restrains trade in violation of the Sherman Act, 15 U.S.C. § 1 et seq. The court relied entirely on the reasoning in Rice v. Alcoholic Beverage Control Appeals Bd., 21 Cal.3d 431, 146 Cal.Rptr. 585, 579 P.2d 476 (1978), where the California Supreme Court struck down parallel restrictions on the sale of distilled liquors. In that case, the court held that because the State played only a passive part in liquor pricing, there was no Parker v. Brown immunity for the program. 6 "In the price maintenance program before us, the state plays no role whatever in setting the retail prices. The prices are established by the producers according to their own economic interests, without regard to any actual or potential anticompetitive effect; the state's role is restricted to enforcing the prices specified by the producers. There is no control or 'pointed re-examination,' by the state to insure that the policies of the Sherman Act are not 'unnecessarily subordinated' to state policy." 21 Cal.3d, at 445, 146 Cal.Rptr., at 595, 579 P.2d, at 486. 7 Rice also rejected the claim that California's liquor pricing policies were protected by § 2 of the Twenty-first Amendment, which insulates state regulation of intoxicating liquors from many federal restrictions. The court determined that the national policy in favor of competition should prevail over the state interests in liquor price maintenance—the promotion of temperance and the preservation of small retail establishments. The court emphasized that the California system not only permitted vertical control of prices by producers, but also frequently resulted in horizontal price fixing. Under the program, many comparable brands of liquor were marketed at identical prices.3 Referring to congressional and state legislative studies, the court observed that resale price maintenance has little positive impact on either temperance or small retail stores. See infra, at 112-113. 8 In the instant case, the State Court of Appeal found the analysis in Rice squarely controlling. 90 Cal.App.3d, at 984, 153 Cal.Rptr., at 760. The court ordered the Department of Alcoholic Beverage Control not to enforce the resale price maintenance and price posting statutes for the wine trade. The Department, which in Rice had not sought certiorari from this Court, did not appeal the ruling in this case.4 An appeal was brought by the California Retail Liquor Dealers Association, an intervenor.5 The California Supreme Court declined to hear the case, and the Dealers Association sought certiorari from this Court. We granted the writ, 444 U.S. 824, 100 S.Ct. 45, 62 L.Ed.2d 31 (1979), and now affirm the decision of the state court. II 9 The threshold question is whether California's plan for wine pricing violates the Sherman Act. This Court has ruled consistently that resale price maintenance illegally restrains trade. In Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 407, 31 S.Ct. 376, 384, 55 L.Ed. 502 (1911), the Court observed that such arrangements are "designed to maintain prices . . ., and to prevent competition among those who trade in [competing goods]." See Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960); United States v. A. Schrader's Son, Inc., 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471 (1920). For many years, however, the Miller-Tydings Act of 1937 permitted the States to authorize resale price maintenance. 50 Stat. 693. The goal of that statute was to allow the States to protect small retail establishments that Congress thought might otherwise be driven from the marketplace by large-volume discounters. But in 1975 that congressional permission was rescinded. The Consumer Goods Pricing Act of 1975, 89 Stat. 801, repealed the Miller-Tydings Act and related legislation.6 Consequently, the Sherman Act's ban on resale price maintenance now applies to fair trade contracts unless an industry or program enjoys a special antitrust immunity. 10 California's system for wine pricing plainly constitutes resale price maintenance in violation of the Sherman Act. Schwegmann Bros. v. Calvert Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951); see Albrecht v. Herald Co., supra; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951); Dr. Miles Medical Co. v. John D. Park & Sons Co., supra. The wine producer holds the power to prevent price competition by dictating the prices charged by wholesalers. As Mr. Justice Hughes pointed out in Dr. Miles, such vertical control destroys horizontal competition as effectively as if wholesalers "formed a combination and endeavored to establish the same restrictions . . . by agreement with each other." 220 U.S., at 408, 31 S.Ct., at 384.7 Moreover, there can be no claim that the California program is simply intrastate regulation beyond the reach of the Sherman Act. See Schwegmann Bros. v. Calvert Corp., supra; Burke v. Ford, 389 U.S. 320, 88 S.Ct. 443, 19 L.Ed.2d 554 (1967) (per curiam ). 11 Thus, we must consider whether the State's involvement in the price-setting program is sufficient to establish antitrust immunity under Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). That immunity for state regulatory programs is grounded in our federal structure. "In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." Id., at 351, 63 S.Ct., at 313. In Parker v. Brown, this Court found in the Sherman Act no purpose to nullify state powers. Because the Act is directed against "individual and not state action," the Court concluded that state regulatory programs could not violate it. Id., at 352, 63 S.Ct., at 314. 12 Under the program challenged in Parker, the State Agricultural Prorate Advisory Commission authorized the organization of local cooperatives to develop marketing policies for the raisin crop. The Court emphasized that the Advisory Commission, which was appointed by the Governor, had to approve cooperative policies following public hearings: "It is the state which has created the machinery for establishing the prorate program. . . . [I]t is the state, acting through the Commission, which adopts the program and enforces it . . . ." Ibid. In view of this extensive official oversight, the Court wrote, the Sherman Act did not apply. Without such oversight, the result could have been different. The Court expressly noted that "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful . . . ." Id., at 351, 63 S.Ct., at 314. 13 Several recent decisions have applied Parker § analysis. In Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), the Court concluded that fee schedules enforced by a state bar association were not mandated by ethical standards established by the State Supreme Court. The fee schedules therefore were not immune from antitrust attack. "It is not enough that . . . anticompetitive conduct is 'prompted' by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign." Id., at 791, 95 S.Ct., at 2015. Similarly, in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976), a majority of the Court found that no antitrust immunity was conferred when a state agency passively accepted a public utility's tariff. In contrast, Arizona rules against lawyer advertising were held immune from Sherman Act challenge because they "reflect[ed] a clear articulation of the State's policy with regard to professional behavior" and were "subject to pointed re-examination by the policymaker—the Arizona Supreme Court—in enforcement proceedings." Bates v. State Bar of Arizona, 433 U.S. 350, 362, 97 S.Ct. 2691, 2698, 53 L.Ed.2d 810 (1977). 14 Only last Term, this Court found antitrust immunity for a California program requiring state approval of the location of new automobile dealerships. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978). That program provided that the State would hold a hearing if an automobile franchisee protested the establishment or relocation of a competing dealership. Id., at 103, 99 S.Ct., at 408. In view of the State's active role, the Court held, the program was not subject to the Sherman Act. The "clearly articulated and affirmatively expressed" goal of the state policy was to "displace unfettered business freedom in the matter of the establishment and relocation of automobile dealerships." Id., at 109, 99 S.Ct., at 412. 15 These decisions establish two standards for antitrust immunity under Parker v. Brown. First, the challenged restraint must be "one clearly articulated and affirmatively expressed as state policy"; second, the policy must be "actively supervised" by the State itself. City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410, 98 S.Ct. 1123, 1135, 55 L.Ed.2d 364 (1978) (opinion of Brennan, J.).8 The California system for wine pricing satisfies the first standard. The legislative policy is forthrightly stated and clear in its purpose to permit resale price maintenance. The program, however, does not meet the second requirement for Parker immunity. The State simply authorizes price setting and enforces the prices established by private parties. The State neither establishes prices nor reviews the reasonableness of the price schedules; nor does it regulate the terms of fair trade contracts. The State does not monitor market conditions or engage in any "pointed reexamination" of the program.9 The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement. As Parker teaches, "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful . . . ." 317 U.S., at 351, 63 S.Ct., at 314. III 16 Petitioner contends that even if California's system of wine pricing is not protected state action, the Twenty-first Amendment bars application of the Sherman Act in this case. Section 1 of that Amendment repealed the Eighteenth Amendment's prohibition on the manufacture, sale, or transportation of liquor. The second section reserved to the States certain power to regulate traffic in liquor: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." The remaining question before us is whether § 2 permits California to countermand the congressional policy—adopted under the commerce power—in favor of competition. A. 17 In determining state powers under the Twenty-first Amendment, the Court has focused primarily on the language of the provision rather than the history behind it. State Board v. Young's Market Co., 299 U.S. 59, 63-64, 57 S.Ct. 77, 78-79, 81 L.Ed. 38 (1936).10 In terms, the Amendment gives the States control over the "transportation or importation" of liquor into their territories. Of course, such control logically entails considerable regulatory power not strictly limited to importing and transporting alcohol. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138, 60 S.Ct. 163, 166, 84 L.Ed. 128 (1939). We should not, however, lose sight of the explicit grant of authority. 18 This Court's early decisions on the Twenty-first Amendment recognized that each State holds great powers over the importation of liquor from other jurisdictions. Young's Market, supra, concerned a license fee for interstate imports of alcohol; another case focused on a law restricting the types of liquor that could be imported from other States, Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424 (1938); two others involved "retaliation" statutes barring imports from States that proscribed shipments of liquor from other States, Joseph S. Finch & Co. v. McKittrick, 305 U.S. 395, 59 S.Ct. 256, 83 L.Ed. 246 (1939); Indianapolis Brewing Co. v. Liquor Control Comm'n, 305 U.S. 391, 59 S.Ct. 254, 83 L.Ed. 243 (1939). The Court upheld the challenged state authority in each case, largely on the basis of the States' special power over the "importation and transportation" of intoxicating liquors. Yet even when the States had acted under the explicit terms of the Amendment, the Court resisted the contention that § 2 "freed the States from all restrictions upon the police power to be found in other provisions of the Constitution." Young's Market, supra, 229 U.S., at 64, 57 S.Ct., at 79. 19 Subsequent decisions have given "wide latitude" to state liquor regulation, Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 42, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966), but they also have stressed that important federal interests in liquor matters survived the ratification of the Twenty-first Amendment. The States cannot tax imported liquor in violation of the Export-Import Clause. Department of Revenue v. James Beam Co., 377 U.S. 341, 84 S.Ct. 1247, 12 L.Ed.2d 362 (1964). Nor can they insulate the liquor industry from the Fourteenth Amendment's requirements of equal protection, Craig v. Boren, 429 U.S. 190, 204-209, 97 S.Ct. 451, 460-463, 50 L.Ed.2d 397 (1976), and due process, Wisconsin v. Constantineau, 400 U.S. 433, 436, 91 S.Ct. 507, 509, 27 L.Ed.2d 515 (1971). 20 More difficult to define, however, is the extent to which Congress can regulate liquor under its interstate commerce power. Although that power is directly qualified by § 2, the Court has held that the Federal Government retains some Commerce Clause authority over liquor. In William Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189 (1939) (per curiam ), this Court found no violation of the Twenty-first Amendment in a whiskey-labeling requirement prescribed by the Federal Alcohol Administration Act, 49 Stat. 977. And in Ziffrin, Inc. v. Reeves, supra, the Court did not uphold Kentucky's system of licensing liquor haulers until it was satisfied that the state program was reasonable. 308 U.S., at 139, 60 S.Ct., at 167. 21 The contours of Congress' commerce power over liquor were sharpened in Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 331-332, 84 S.Ct. 1293, 1298, 12 L.Ed.2d 350 (1964). 22 "To draw a conclusion . . . that the Twenty-first Amendment has somehow operated to 'repeal' the Commerce Clause wherever regulation of intoxicating liquors is concerned would, however, be an absurd oversimplification. If the Commerce Clause had been pro tanto 'repealed,' then Congress would be left with no regulatory power over interstate or foreign commerce in intoxicating liquor. Such a conclusion would be patently bizarre and is demonstrably incorrect." 23 The Court added a significant, if elementary, observation: "Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case." Id., at 332, 84 S.Ct., at 1298. See Craig v. Boren, 429 U.S., at 206, 97 S.Ct., at 461.11 24 This pragmatic effort to harmonize state and federal powers has been evident in several decisions where the Court held liquor companies liable for anticompetitive conduct not mandated by a State. See Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951); United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945). In Schwegmann Bros. v. Calvert Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951), for example, a liquor manufacturer attempted to force a distributor to comply with Louisiana's resale price maintenance program, a program similar in many respects to the California system at issue here. The Court held that because the Louisiana statute violated the Sherman Act, it could not be enforced against the distributor. Fifteen years later, the Court rejected a Sherman Act challenge to a New York law requiring liquor dealers to attest that their prices were "no higher than the lowest price" charged anywhere in the United States. Seagram & Sons v. Hostetter, supra. The Court concluded that the statute exerted "no irresistible economic pressure on the [dealers] to violate the Sherman Act in order to comply," but it also cautioned that "[n]othing in the Twenty-first Amendment, of course, would prevent enforcement of the Sherman Act" against an interstate conspiracy to fix liquor prices. Id., at 45-46, 86 S.Ct., at 1261. See Burke v. Ford, 389 U.S. 320, 88 S.Ct. 443, 19 L.Ed.2d 554 (1967) (per curiam ). 25 These decisions demonstrate that there is no bright line between federal and state powers over liquor. The Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to the federal commerce power in appropriate situations. The competing state and federal interests can be reconciled only after careful scrutiny of those concerns in a "concrete case." Hostetter v. Idlewild Liquor Corp., supra, at 332, 84 S.Ct., at 1298. B 26 The federal interest in enforcing the national policy in favor of competition is both familiar and substantial. 27 "Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms." United States v. Topco Associates, Inc., 405 U.S. 596, 610, 92 S.Ct. 1126, 1135, 31 L.Ed.2d 515 (1972). 28 See Northern Pacific R. Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958). Although this federal interest is expressed through a statute rather than a constitutional provision, Congress "exercis[ed] all the power it possessed" under the Commerce Clause when it approved the Sherman Act. Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932); see City of Lafayette v. Louisiana Power & Light Co., 435 U.S., at 398, 98 S.Ct., at 1129. We must acknowledge the importance of the Act's procompetition policy. 29 The state interests protected by California's resale price maintenance system were identified by the state courts in this case, 90 Cal.App.3d, at 983, 153 Cal.Rptr., at 760, and in Rice v. Alcoholic Beverage Control Appeals Bd., 21 Cal.3d, at 451, 146 Cal.Rptr., at 598, 579 P.2d, at 490.12 Of course, the findings and conclusions of those courts are not binding on this Court to the extent that they undercut state rights guaranteed by the Twenty-first Amendment. See Hooven & Allison Co. v. Evatt, 324 U.S. 652, 659, 65 S.Ct. 870, 874, 89 L.Ed. 1252 (1945); Creswill v. Knights of Pythias, 225 U.S. 246, 261, 32 S.Ct. 822, 827, 56 L.Ed. 1074 (1912). Nevertheless, this Court accords "respectful consideration and great weight to the views of the state's highest court" on matters of state law, Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100, 58 S.Ct. 443, 446, 82 L.Ed. 685 (1938), and we customarily accept the factual findings of state courts in the absence of "exceptional circumstances." Lloyd A. Fry Roofing Co. v. Wood, 344 U.S. 157, 160, 73 S.Ct. 204, 206, 97 L.Ed. 168 (1952). 30 The California Court of Appeal stated that its review of the State's system of wine pricing was "controlled by the reasoning of the [California] Supreme Court in Rice [supra]." 90 Cal.App.3d, at 983, 153 Cal.Rptr., at 760. Therefore, we turn to that opinion's treatment of the state interests in resale price maintenance for distilled liquors. 31 In Rice, the State Supreme Court found two purposes behind liquor resale price maintenance: "to promote temperance and orderly market conditions." 21 Cal.3d, at 451, 146 Cal.Rptr., at 599, 579 P.2d, at 490.13 The court found little correlation between resale price maintenance and temperance. It cited a state study showing a 42% increase in per capita liquor consumption in California from 1950 to 1972, while resale price maintenance was in effect. Id., at 457-458, 146 Cal.Rptr., at 602-603, 579 P.2d, at 494, citing California Dept. of Finance, Alcohol and the State: A Reappraisal of California's Alcohol Control Policies, xi, 15 (1974). Such studies, the court wrote, "at the very least raise a doubt regarding the justification for such laws on the ground that they promote temperance." 21 Cal.3d, at 457-458, 146 Cal.Rptr., at 603, 579 P.2d, at 494.14 32 The Rice opinion identified the primary state interest in orderly market conditions as "protect[ing] small licensees from predatory pricing policies of large retailers." Id., at 456, 146 Cal.Rptr., at 602, 579 P.2d, at 493.15 In gauging this interest, the court adopted the views of the Appeals Board of the Alcoholic Beverages Control Department, which first ruled on the claim in Rice. The state agency "rejected the argument that fair trade laws were necessary to the economic survival of small retailers . . . ." Ibid. The agency relied on a congressional study of the impact on small retailers of fair trade laws enacted under the Miller-Tydings Act. The study revealed that "states with fair trade laws had a 55 percent higher rate of firm failures than free trade states, and the rate of growth of small retail stores in free trade states between 1956 and 1972 was 32 per cent higher than in states with fair trade laws." Ibid., citing S.Rep. No. 94-466, p. 3 (1975). Pointing to the congressional abandonment of fair trade in the 1975 Consumer Goods Pricing Act, see supra, at 102, the State Supreme Court found no persuasive justification to continue "fair trade laws which eliminate price competition among retailers." 21 Cal.3d, at 457, 146 Cal.Rptr., at 603, 579 P.2d, at 494. The Court of Appeal came to the same conclusion with respect to the wholesale wine trade. 90 Cal.App.3d, at 983, 153 Cal.Rptr., at 760. 33 We have no basis for disagreeing with the view of the California courts that the asserted state interests are less substantial than the national policy in favor of competition. That evaluation of the resale price maintenance system for wine is reasonable, and is supported by the evidence cited by the State Supreme Court in Rice. Nothing in the record in this case suggests that the wine pricing system helps sustain small retail establishments. Neither the petitioner nor the State Attorney General in his amicus brief has demonstrated that the program inhibits the consumption of alcohol by Californians. We need not consider whether the legitimate state interests in temperance and the protection of small retailers ever could prevail against the undoubted federal interest in a competitive economy. The unsubstantiated state concerns put forward in this case simply are not of the same stature as the goals of the Sherman Act. 34 We conclude that the California Court of Appeal correctly decided that the Twenty-first Amendment provides no shelter for the violation of the Sherman Act caused by the State's wine pricing program.16 The judgment of the California Court of Appeal, Third Appellate District, is 35 Affirmed. 36 Mr. Justice BRENNAN did not take part in the consideration or decision of this case. 1 The statute provides: "Each wine grower, wholesaler licensed to sell wine, wine rectifier, and rectifier shall: "(a) Post a schedule of selling prices of wine to retailers or consumers for which his resale price is not governed by a fair trade contract made by the person who owns or controls the brand. "(b) Make and file a fair trade contract and file a schedule of resale prices, if he owns or controls a brand of wine resold to retailers or consumers." Cal.Bus. & Prof.Code Ann. § 24866 (West 1964). 2 Licensees that sell wine below the prices specified in fair trade contracts or schedules also may be subject to private damages suits for unfair competition. § 24752 (West 1964). 3 The court cited record evidence that in July 1976 five leading brands of gin each sold in California for $4.89 for a fifth of a gallon, and that five leading brands of Scotch whiskey sold for either $8.39 or $8.40 a fifth. Rice v. Alcoholic Beverage Control Appeals Bd., 21 Cal.3d, at 454, and nn. 14, 16, 146 Cal.Rptr. 585, 600, and nn. 14, 16, 579 P.2d, at 491-492, and nn. 14, 16. 4 The State also did not appeal the decision in Capiscean Corp. v. Alcoholic Beverage Control Appeals Bd., 87 Cal.App.3d 996, 151 Cal.Rptr. 492 (1979), which used the analysis in Rice to invalidate California's resale price maintenance scheme for retail wine sales to consumers. 5 The California Retail Liquor Dealers Association, a trade association of independent retail liquor dealers in California, claims over 3,000 members. 6 The congressional Reports accompanying the Consumer Goods Pricing Act of 1975, noted that repeal of fair trade authority would not alter whatever power the States hold under the Twenty-first Amendment to control liquor prices. S.Rep. No. 94-466, p. 2 (1975); H.R.Rep. No. 94-341, p. 3, n. 2 (1975), U.S.Code Cong. & Admin.News, p. 1569. We consider the effect of the Twenty-first Amendment on this case in Part III, infra. 7 In Rice, the California Supreme Court found direct evidence that resale price maintenance resulted in horizontal price fixing. See supra, at 101, and n. 3. Although the Court of Appeal made no such specific finding in this case, the court noted that the wine pricing system "cannot be upheld for the same reasons the retail price maintenance provisions were declared invalid in Rice." Midcal Aluminum, Inc. v. Rice, 90 Cal.App.3d 979, 983, 153 Cal.Rptr. 757, 760 (1979). 8 See Norman's On the Waterfront, Inc. v. Wheatley, 444 F.2d 1011, 1018 (CA3 1971); Asheville Tobacco Bd. v. FTC, 263 F.2d 502, 509-510 (CA4 1959); Note, Parker v. Brown Revisited: The State Action Doctrine After Goldfarb, Cantor, and Bates, 77 Colum.L.Rev. 898, 916 (1977). 9 The California program contrasts with the approach of those States that completely control the distribution of liquor within their boundaries. E. g., Va.Code §§ 4-15, 4-28 (1979). Such comprehensive regulation would be immune from the Sherman Act under Parker v. Brown, since the State would "displace unfettered business freedom" with its own power. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 412, 58 L.Ed.2d 361 (1978); see State Board v. Young's Market Co., 299 U.S. 59, 63, 57 S.Ct. 77, 78, 81 L.Ed. 38 (1936). 10 The approach is supported by sound canons of constitutional interpretation and demonstrates a wise reluctance to wade into the complex currents beneath the congressional proposal of the Amendment and its ratification in the state conventions. The Senate sponsor of the Amendment resolution said the purpose of § 2 was "to restore to the States . . . absolute control in effect over interstate commerce affecting intoxicating liquors. . . ." 76 Cong.Rec. 4143 (1933) (remarks of Sen. Blaine). Yet he also made statements supporting Midcal's claim that § 2 was designed only to ensure that "dry" States could not be forced by the Federal Government to permit the sale of liquor. See 76 Cong.Rec., at 4140-4141. The sketchy records of the state conventions reflect no consensus on the thrust of § 2, although delegates at several conventions expressed their hope that state regulation of liquor traffic would begin immediately. E. Brown, Ratification of the Twenty-first Amendment to the Constitution 104 (1938) (Wilson, President of Idaho Convention); id., at 191-192 (Darnall, President of Maryland Convention); id., at 247 (Gaylord, Chairman of Missouri Convention); id., at 469-473 (resolution adopted at Washington Convention calling for state action "to regulate the liquor traffic"). See generally Note, The Effect of the Twenty-First Amendment on State Authority to Control Intoxicating Liquors, 75 Colum.L.Rev. 1578, 1580 (1975); Note, Economic Localism in State Alcoholic Beverage Laws—Experience Under the Twenty-First Amendment, 72 Harv.L.Rev. 1145, 1147 (1959). 11 In Nippert v. Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760 (1946), the Court commented in a footnote: "[E]ven the commerce in intoxicating liquors, over which the Twenty-first Amendment gives the States the highest degree of control, is not altogether beyond the reach of the federal commerce power, at any rate when the State's regulation squarely conflicts with regulation imposed by Congress . . . ." Id., at 425, n. 15, 66 S.Ct., at 591, n. 15. 12 As the unusual posture of this case reflects, the State of California has shown less than an enthusiastic interest in its wine pricing system. As we noted, the state agency responsible for administering the program did not appeal the decision of the California Court of Appeal. See supra, at 101-102; Tr. of Oral Arg. 20. Instead, this action has been maintained by the California Retail Liquor Dealers Association, a private intervenor. But neither the intervenor nor the State Attorney General, who filed a brief amicus curiae in support of the legislative scheme, has specified any state interests protected by the resale price maintenance system other than those noted in the state-court opinions cited in text. 13 The California Court of Appeal found no additional state interests in the instant case. 90 Cal.App.3d, at 984, 153 Cal.Rptr., at 760-761. That court rejected the suggestion that the wine price program was designed to protect the State's wine industry, pointing out that the statutes "do not distinguish between California wines and imported wines." Ibid. 14 See Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 39, 86 S.Ct. 1254, 1258, 16 L.Ed.2d 336 (1966) (citing study concluding that resale price maintenance in New York State had "no significant effect upon the consumption of alcoholic beverages"). 15 The California Supreme Court also stated that orderly market conditions might "reduce excessive consumption, thereby encouraging temperance." 21 Cal.3d, at 456, 146 Cal.Rptr., at 602, 579 P.2d, at 493. The concern for temperance, however, was considered by the court as an independent state interest in resale price maintenance for liquor. 16 Since Midcal requested only injunctive relief from the state court, there is no question before us involving liability for damages under 15 U.S.C. § 15.

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445 U.S. 115 100 S.Ct. 948 63 L.Ed.2d 250 UNITED STATES, Petitioner,v.Stanley APFELBAUM. No. 78-972. Argued Dec. 3, 1979. Decided March 3, 1980. Syllabus After initially invoking his Fifth Amendment privilege against self-incrimination while being questioned before a federal grand jury, respondent ultimately testified when the Government granted him immunity in accordance with 18 U.S.C. § 6002, which provides that when a witness is compelled to testify over his claim of a Fifth Amendment privilege, no testimony or other information compelled under the order to testify may be used against the witness in any criminal case, "except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." Respondent was later indicted and convicted under 18 U.S.C. § 1623(a) (1976 ed., Supp. II) for false swearing in his grand jury testimony with regard to certain statements. At trial, respondent objected to the use of any of his immunized testimony except the portions charged in the indictment as false, but the District Court admitted other portions of the testimony as being relevant to prove that he had knowingly made the charged false statements. The Court of Appeals reversed, holding that because such immunized testimony did not constitute the "corpus delicti " or "core" of the false-statements offense, it could not be introduced. Held: Because proper invocation of the Fifth Amendment privilege against self-incrimination allows a witness to remain silent, but not to swear falsely, neither § 6002 nor the Fifth Amendment precludes the use of respondent's immunized grand jury testimony at a subsequent prosecution for making false statements, so long as that testimony conforms to otherwise applicable rules of evidence. Pp. 121-132. (a) Section 6002's language makes no distinction between truthful and untruthful statements made during the course of immunized testimony, but, rather, creates a blanket exemption from the bar against the use of such testimony where the witness is subsequently prosecuted for making false statements. And § 6002's legislative history shows that Congress intended the perjury and false-declarations exception to be interpreted as broadly as constitutionally permissible. Thus, it is evidence that Congress intended to permit the use of both truthful and false statements made during the course of immunized testimony if such use was not prohibited by the Fifth Amendment. Pp. 121-123. (b) It is analytically incorrect to equate the benefits of remaining silent as a result of invocation of the Fifth Amendment privilege with the protections conferred by the privilege protections that may be invoked with respect to matters that pose substantial and real hazards of subjecting a witness to criminal liability at the time he asserts the privilege. For a grant of immunity to provide protection "coextensive" with that of the Fifth Amendment, it need not treat the witness as if he had remained silent. Here, the Fifth Amendment does not prevent the use of respondent's immunized testimony at his trial for false swearing because, at the time he was granted immunity, the privilege would not have protected him against false testimony, the privilege would not have protected him against false testimony that he later might decide to give. Pp. 123-132. 584 F.2d 1264, reversed. William C. Bryson, Washington, D.C., for petitioner. Joel Harvey Slomsky, Philadelphia, Pa., for respondent. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 Respondent Apfelbaum invoked his privilege against compulsory self-incrimination while being questioned before a grand jury in the Eastern District of Pennsylvania. The Government then granted him immunity in accordance with 18 U.S.C. § 6002, and he answered the questions propounded to him. He was then charged with and convicted of making false statements in the course of those answers.1 The Court of Appeals reversed the conviction, however, because the District Court had admitted into evidence relevant portions of respondent's grand jury testimony that had not been alleged in the indictment to constitute the "corpus delicti " or "core" of the false-statements offense. Because proper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely, we hold that neither the statute nor the Fifth Amendment requires that the admissibility of immunized testimony be governed by any different rules than other testimony at a trial for making false statements in violation of 18 U.S.C. § 1623(a) (1976 ed., Supp. II). We therefore reverse the judgment of the Court of Appeals. 2 * The grand jury had been investigating alleged criminal activities in connection with an automobile dealership located in the Chestnut Hill section of Philadelphia. The investigation focused on a robbery of $175,000 in cash that occurred at the dealership on April 16, 1975, and on allegations that two officers of the dealership staged the robbery in order to repay loan-shark debts.2 The grand jury also heard testimony that the officers were making extortionate extensions of credit through the Chestnut Hill Lincoln-Mercury dealership. 3 In 1976, respondent Apfelbaum, then an administrative assistant to the District Attorney in Philadelphia, was called to testify because it was thought likely that he was an aider or abettor or an accessory after the fact to the allegedly staged robbery. When the grand jury first sought to question him about his relationship with the two dealership officials suspected of the staged robbery, he claimed his Fifth Amendment privilege against compulsory self-incrimination and refused to testify. The District Judge entered an order pursuant to 18 U.S.C. § 6002 granting him immunity and compelling him to testify.3 Respondent ultimately complied with this order to testify.4 4 During the course of his grand jury testimony, respondent made two series of statements that served as the basis for his subsequent indictment and conviction for false swearing. The first series was made in response to questions concerning whether respondent had attempted to locate Harry Brown, one of the two dealership officials, while on a "fishing trip" in Ft. Lauderdale, Fla., during the month of December 1975. Respondent testified that he was "positive" he had not attempted to locate Brown, who was also apparently in the Ft. Lauderdale area at the time. In a second series of statements, respondent denied that he had told FBI agents that he had lent $10,000 to Brown. The grand jury later indicted respondent pursuant to 18 U.S.C. § 1623(a) (1976 ed., Supp. II) for making these statements, charging that the two series of statements were false and that respondent knew they were false. 5 At trial, the Government introduced into evidence portions of respondent's grand jury testimony in order to put the charged statements in context and to show that respondent knew they were false. The excerpts concerned respondent's relationship with Brown, his 1976 trip to Florida to visit Brown, the discussions he had with Brown on that occasion, and his denial that he had financial dealings with the automobile dealership in Philadelphia or had cosigned a loan for Brown. Respondent objected to the use of all the immunized testimony except the portions charged in the indictment as false. The District Court overruled the objection and admitted the excerpts into evidence on the ground that they were relevant to prove that respondent had knowingly made the charged false statements. The jury found respondent guilty on both counts of the indictment. 6 The Court of Appeals for the Third Circuit reversed, holding that because the immunized testimony did not constitute "the corpus delicti or core of a defendant's false swearing indictment" it could not be introduced. 584 F.2d 1264, 1265 (1978). We granted certiorari because of the importance of the issue and because of a difference in approach to it among the Courts of Appeals.5 440 U.S. 957, 99 S.Ct. 1496, 59 L.Ed.2d 770 (1979). 7 The differing views that this question has elicited from the Courts of Appeals are not surprising, because there are considered statements in one line of cases from this Court, and both statements and actual holdings in another line of cases, that as a matter of strict and literal reading cannot be wholly reconciled.6 Though most of the decisions of the Courts of Appeals turn on the interaction between perjury and immunity statutes enacted by Congress and the privilege against compulsory self-incrimination conferred by the Fifth Amendment to the United States Constitution, it is of course our first duty to decide whether the statute relied upon in this case to sustain the conviction of respondent may properly be interpreted to do so. We turn now to decision of that question. II 8 Did Congress intend the federal immunity statute, 18 U.S.C. § 6002, to limit the use of a witness' immunized grand jury testimony in a subsequent prosecution of the witness for false statements made at the grand jury proceeding? Respondent contends that while § 6002 permits the use of a witness' false statements in a prosecution for perjury or for making false declarations, it establishes an absolute prohibition against the use of truthful immunized testimony in such prosecutions. But this contention is wholly at odds with the explicit language of the statute, and finds no support even in its legislative history. 9 It is a well-established principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language. Here 18 U.S.C. § 6002 provides that when a witness is compelled to testify over his claim of a Fifth Amendment privilege, "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." (Emphasis added.) The statute thus makes no distinction between truthful and untruthful statements made during the course of the immunized testimony. Rather, it creates a blanket exemption from the bar against the use of immunized testimony in cases in which the witness is subsequently prosecuted for making false statements. 10 The legislative history of § 6002 shows that Congress intended the perjury and false-declarations exception to be interpreted as broadly as constitutionally permissible. The present statute was enacted as a part of the Organized Crime Control Act of 1970,7 after a re-examination of the broad transactional immunity statute enacted in response to this Court's decision in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). See Kastigar v. United States, 406 U.S. 441, 452, and n. 36, 96 S.Ct. 1653, 1660, and n. 36, 32 L.Ed.2d 212 (1972). Its design was not only to bring about uniformity in the operation of immunity grants within the federal system,8 but also to restrict the grant of immunity to that required by the United States Constitution. Thus, the statute derives from a 1969 report of the National Commission on the Reform of the Federal Criminal Laws, which proposed a general use immunity statute under which "the immunity conferred would be confined to the scope required by the Fifth Amendment."9 And as stated in both the Senate and House Reports on the proposed legislation: 11 "This statutory immunity is intended to be as broad as, but no broader than, the privilege against self-incrimination. . . . It is designed to reflect the use-restriction immunity concept of Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) rather [than] the transaction immunity concept of Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892)."10 12 In light of the language and legislative history of § 6002, the conclusion is inescapable that Congress intended to permit the use of both truthful and false statements made during the course of immunized testimony if such use was not prohibited by the Fifth Amendment. III 13 The limitation placed on the use of relevant evidence by the Court of Appeals may be justified, then, only if required by the Fifth Amendment. Respondent contends that his conviction was properly reversed because under the Fifth Amendment his truthful immunized statements were inadmissible at his perjury trial, and the Government never met its burden of showing that the immunized statements it introduced into evidence were not truthful. The Court of Appeals, as noted above, concluded that the Fifth Amendment prohibited the use of all immunized testimony except the "corpus delicti " or "core" of the false swearing indictment. 14 In reaching its conclusion, the Court of Appeals initially observed that a grant of immunity must be coextensive with the Fifth Amendment. Kastigar v. United States, supra, at 449, 92 S.Ct., at 1659. It then reasoned that had respondent not been granted immunity, he would have been entitled under the Fifth Amendment to remain silent. And if he had remained silent, he would not have answered any questions, truthfully or falsely. There consequently would have been no testimony whatsoever to use against him. A prosecution for perjury committed at the immunized proceeding, the Court of Appeals continued, must be permitted because "as a practical matter, if immunity constituted a license to lie, the purpose of immunity would be defeated." Such a prosecution is but a "narrow exception" carved out to preserve the integrity of the truth-seeking process. But the subsequent use of statements made at the immunized proceeding, other than those alleged in the indictment to be false, is impermissible because the introduction of such statements cannot be reconciled with the privilege against self-incrimination. 584 F.2d, at 1269-1271. 15 * There is more than one flaw in this reasoning. Initially, it presumes that in order for a grant of immunity to be "coextensive with the Fifth Amendment privilege," the witness must be treated as if he had remained silent. This presumption focuses on the effect of the assertion of the Fifth Amendment privilege, rather than on the protection the privilege is designed to confer. In so doing, it calls into question the constitutionality of all immunity statutes, including "transactional" immunity statutes as well as "use" immunity statutes such as § 6002. Such grants of immunity would not provide a full and complete substitute for a witness' silence because, for example, they do not bar the use of the witness' statements in civil proceedings. Indeed, they fail to prevent the use of such statements for any purpose that might cause detriment to the witness other than that resulting from subsequent criminal prosecution. 16 This Court has never held, however, that the Fifth Amendment requires immunity statutes to preclude all uses of immunized testimony. Such a requirement would be inconsistent with the principle that the privilege does not extend to consequences of a noncriminal nature, such as threats of liability in civil suits, disgrace in the community, or the loss of employment. See, e. g., Brown v. Walker, 161 U.S. 591, 605-606, 16 S.Ct. 644, 650, 40 L.Ed. 819 (1896); Smith v. United States, 337 U.S. 137, 147, 69 S.Ct. 1000, 1005, 93 L.Ed. 1264 (1949); Ullmann v. United States, 350 U.S. 422, 430-431, 76 S.Ct. 497, 502-503, 100 L.Ed. 511 (1956); Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 392 U.S. 280, 284-285, 88 S.Ct. 1917, 1919-1920, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 279, 88 S.Ct. 1913, 1916 (1968). 17 And this Court has repeatedly recognized the validity of immunity statutes. Kastigar v. United States, 406 U.S., at 449, 92 S.Ct., at 1658, acknowledged that Congress included immunity statutes in many of the regulatory measures adopted in the first half of this century, and that at the time of the enactment of 18 U.S.C. § 6002, the statute under which this prosecution was brought, there were in force over 50 federal immunity statutes as well as similar laws in every State of the Union. 406 U.S., at 447, 92 S.Ct., at 1657-1658. This Court in Ullmann v. United States, supra, stated that such statutes have "become part of our constitutional fabric." 350 U.S., at 438, 76 S.Ct., at 506. And the validity of such statutes may be traced in our decisions at least as far back as Brown v. Walker, supra. 18 These cases also establish that a strict and literal reading of language in cases such as Counselman v. Hitchcock, 142 U.S., at 585, 12 S.Ct., at 206—that an immunity statute "cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect"—does not require the sort of "but for" analysis used by the Court of Appeals in order to enable it to survive attack as being violative of the privilege against compulsory self-incrimination. Indeed, in Brown v. Walker, supra, 161 U.S., at 600, 16 S.Ct., at 648, this Court stated that "[t]he danger of extending the principle announced in Counselman v. Hitchcock is that the privilege may be put forward for a sentimental reason, or for a purely fanciful protection of the witness against an imaginary danger, and for the real purpose of securing immunity to some third person, who is interested in concealing the facts to which he would testify." And in Kastigar v. United States, we concluded that "[t]he broad language in Counselman relied upon by petitioners was unnecessary to the Court's decision, and cannot be considered binding authority." 406 U.S., at 454-455, 92 S.Ct., at 1662. Kastigar also expressly declined a request by the petitioner to reconsider and overrule Brown v. Walker, supra, and Ullmann v. United States, supra, and went on to expressly reaffirm the validity of those decisions. 19 The reasoning of the Court of Appeals is also internally inconsistent in that logically it would not permit a prosecution for perjury or false swearing committed during the course of the immunized testimony. If a witness must be treated as if he had remained silent, the mere requirement that he answer questions, thereby subjecting himself to the possibility of being subsequently prosecuted for perjury or false swearing, places him in a position that is substantially different from that he would have been in had he been permitted to remain silent. 20 All of the Courts of Appeals, however, have recognized that the provision in 18 U.S.C. § 6002 allowing prosecutions for perjury in answering questions following a grant of immunity does not violate the Fifth Amendment privilege against compulsory self-incrimination. And we ourselves have repeatedly held that perjury prosecutions are permissible for false answers to questions following the grant of immunity. See, e. g., United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977); United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (plurality opinion); id., at 584-585, 96 S.Ct., at 1780-1781 (BRENNAN, J., concurring in judgment); id., at 609, 96 S.Ct., at 1792 (STEWART, J., joined by BLACKMUN, J., concurring in judgment). 21 It is therefore analytically incorrect to equate the benefits of remaining silent as a result of invocation of the Fifth Amendment privilege with the protections conferred by the privilege—protections that may be invoked with respect to matters that pose substantial and real hazards of subjecting a witness to criminal liability at the time he asserts the privilege. For a grant of immunity to provide protection "coextensive" with that of the Fifth Amendment, it need not treat the witness as if he had remained silent. Such a conclusion, as noted above, is belied by the fact that immunity statutes and prosecutions for perjury committed during the course of immunized testimony are permissible at all. B 22 The principle that the Fifth Amendment privilege against compulsory self-incrimination provides no protection for the commission of perjury has frequently been cited without any elaboration as to its underlying rationale. See, e. g., Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264 (1969); United States v. Knox, 396 U.S. 77, 82, 90 S.Ct. 363, 366, 24 L.Ed.2d 275 (1969). Its doctrinal foundation, as relied on in both Wong and Mandujano, is traceable to Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 73, 56 L.Ed. 128 (1911). Glickstein stated that the Fifth Amendment "does not endow the person who testifies with a license to commit perjury," ibid., and that statement has been so often repeated in our cases as to be firmly established constitutional law. But just as we have refused to read literally the broad dicta of Counselman, supra, we are likewise unwilling to decide this case solely upon an epigram contained in Glickstein, supra. Thus, even if, as the Court of Appeals said, a perjury prosecution is but a "narrow exception" to the principle that a witness should be treated as if he had remained silent, it does not follow that the Court of Appeals was correct in its view of the question before us now. 23 Perjury prosecutions based on immunized testimony, even if they be but a "narrow exception" to the principle that a witness should be treated as if he had remained silent after invoking the Fifth Amendment privilege, are permitted by our cases. And so long as they are, there is no principle or decision that limits the admissibility of evidence in a manner peculiar only to them. To so hold would not be an exercise in the balancing of competing constitutional rights, but in a comparison of apples and oranges.11 For even if both truthful and untruthful testimony from the immunized proceeding are admissible in a subsequent perjury prosecution, the exception surely would still be properly regarded as "narrow," once it is recognized that the testimony remains inadmissible in all prosecutions for offenses committed prior to the grant of immunity that would have permitted the witness to invoke his Fifth Amendment privilege absent the grant. 24 While the application of the Fifth Amendment privilege to various types of claims has changed in some respects over the past three decades, the basic test reaffirmed in each case has been the same. 25 "The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination. Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 442, 95 L.Ed. 344; Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 40 L.Ed. 819." Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968). 26 Marchetti, which overruled earlier decisions of this Court in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), invalidated the federal wagering statutes at issue in Kahriger and Lewis on the ground that they contravened the petitioner's Fifth Amendment right against compulsory self-incrimination. The practical effect of the requirements of those statutes was to compel petitioner, a professional gambler engaged in ongoing gambling activities that he had commenced and was likely to continue, to choose between openly exposing himself as acting in violation of state and federal gambling laws and risking federal prosecution for tax avoidance.12 The Court held that petitioner was entitled to assert his Fifth Amendment privilege in these circumstances. But it also observed that "prospective acts will doubtless ordinarily involve only speculative and insubstantial risks of incrimination." 390 U.S., at 54, 88 S.Ct., at 705. Thus, although Marchetti rejected "the rigid chronological distinction adopted in Kahriger and Lewis," id., at 53, 88 S.Ct. at 705, that distinction does not aid respondent here. 27 In United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), this Court rejected the argument that a registration requirement of the National Firearms Act violated the Fifth Amendment because the information disclosed could be used in connection with offenses that the transferee of the firearm might commit in the future. In so doing, the Court stated: 28 "Appellees' argument assumes the existence of a periphery of the Self-Incrimination Clause which protects a person against incrimination not only against past or present transgressions but which supplies insulation for a career of crime about to be launched. We cannot give the Self-Incrimination Clause such an expansive interpretation." Id., at 606-607, 91 S.Ct., at 1117. 29 And Mr. Justice BRENNAN in his concurring opinion added: 30 "I agree with the Court that the Self-Incrimination Clause of the Fifth Amendment does not require that immunity be given as to the use of such information in connection with crimes that the transferee might possibly commit in the future with the registered firearm." Id., at 611, 91 S.Ct. at 1119. 31 In light of these decisions, we conclude that the Fifth Amendment does not prevent the use of respondent's immunized testimony at his trial for false swearing because, at the time he was granted immunity, the privilege would not have protected him against false testimony that he later might decide to give. Respondent's assertion of his Fifth Amendment privilege arose from his claim that the questions relating to his connection with the Chestnut Hill auto dealership would tend to incriminate him. The Government consequently granted him "use" immunity under § 6002, which prevents the use and derivative use of his testimony with respect to any subsequent criminal case except prosecutions for perjury and false swearing offenses, in exchange for his compelled testimony. 32 The Government has kept its part of the bargain; this is a perjury prosecution and not any other kind of criminal prosecution. The Court of Appeals agreed that such a prosecution might be maintained, but as noted above severely limited the admissibility of immunized testimony to prove the Government's case. We believe that it could not be fairly said that respondent, at the time he asserted his privilege and was consequently granted immunity, was confronted with more than a "trifling or imaginary" hazard of compelled self-incrimination as a result of the possibility that he might com mit perjury during the course of his immunized testimony. In United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (1950), we held that an immunity statute that provided that "[n]o testimony given by a witness before . . . any committee of either House . . . shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony," did not bar the use at respondent's trial for willful default of the testimony given by her before a congressional committee. In so holding, we stated that "[t]here is, in our jurisprudence, no doctrine of 'anticipatory contempt.' " Id., at 341, 70 S.Ct., at 735. 33 We hold here that in our jurisprudence there likewise is no doctrine of "anticipatory perjury." In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur.13 Similarly, a future intention to commit perjury or to make false statements if granted immunity because of a claim of compulsory self-incrimination is not by itself sufficient to create a "substantial and 'real' " hazard that permits invocation of the Fifth Amendment. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951). Therefore, neither the immunity statute nor the Fifth Amendment precludes the use of respondent's immunized testimony at a subsequent prosecution for making false statements, so long as that testimony conforms to otherwise applicable rules of evidence. The exception of a perjury prosecution from the prohibition against the use of immunized testimony may be a narrow one, but it is also a complete one. The Court of Appeals having held otherwise, its judgment is accordingly 34 Reversed. 35 Mr. Justice BRENNAN, concurring in the judgment. 36 The Fifth Amendment guarantees the right to be free from compulsory self-incrimination. It permits an individual to refuse to answer questions; but it does not give him the right to answer falsely. United States v. Mandujano, 425 U.S. 564, 584-585, 96 S.Ct. 1768, 1780-1781, 48 L.Ed.2d 212 (1976) (BRENNAN, J., concurring in judgment); United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977). When the Government compels testimony via a grant of immunity it is constitutionally required to place the victim in a position similar to the one he would have occupied had he exercised his Fifth Amendment privilege. The scope of immunity, in other words, must be "coextensive with the scope of the privilege." Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 1659, 32 L.Ed.2d 212 (1972). This does not, however, bar a prosecution for perjury committed in the course of immunized testimony, even though such a prosecution will obviously place the witness in a worse position that he would have been in had he invoked the privilege. The perjury exception seems to have two sources. First, it stems from the aforementioned fact that prior to the immunity grant the witness had no Fifth Amendment right to answer falsely, and, second, it flows from the simple reality that affording the witness a right to lie with impunity would render the entire immunity transaction futile. 37 Because I think it follows from the logic and exigencies of the perjury exception that the Government should be permitted to introduce other portions of the immunized testimony to prove elements of the offense of perjury, I concur in the judgment reversing the decision of the Court of Appeals for the Third Circuit. And because I find this ground adequate to decide the present case I see no reason to explore the terrain which the majority probes via what is in one sense dicta. More particularly, (1) I do not think that the present result compels the conclusion that there are no special constitutional constraints on the use to which immunized testimony may be put in a perjury prosecution, and (2) I am by no means persuaded that the result here would be correct were this a prosecution for false swearing occurring after the immunized testimony rather than in the course of it. 38 Mr. Justice BLACKMUN, with whom Mr. Justice MARSHALL joins, concurring in the judgment. 39 I do not join the Court's opinion. I agree, however, that the Court of Appeals too narrowly confined the use of immunized testimony in the prosecution of respondent for giving false testimony. I do not fully subscribe to the Court's holding that "neither the statute nor the Fifth Amendment requires that the admissibility of immunized testimony be governed by any different rules than other testimony at a trial for making false statements." Ante, at 117. And I do not fully agree with the Court's conclusion that the practical effect of asserting the privilege against self-incrimination is an unimportant factor in determining whether a grant of immunity is coextensive with Fifth Amendment protection. See ante, at 125. I therefore concur only in the judgment. 40 The Court's statement of its holding troubles me primarily for two reasons. First, it apparently makes no distinction between a prosecution for false testimony given under a grant of immunity and a prosecution for false testimony in other contexts. This case concerns the use of immunized testimony to prove that respondent made contemporaneous false statements. There is no occasion to determine whether the immunized testimony could have been used to prove perjury or false statements occurring at some other time. The Court thus states its holding in language that is broader than necessary. At the moment, I am not prepared to go so far. 41 Second, I am not sure I agree that the use of immunized testimony in perjury prosecutions requires no special analysis with respect to the usual rules of evidence. How the testimony is to be used may well be an important factor in determining whether the protection against self-incrimination has been honored. For example, a witness' truthful admission of prior perjury conceivably might be protected from use even though independent evidence of such a prior similar crime were admissible. Again, I would prefer to await further developments before deciding this question. 42 Perhaps a more fundamental reservation about the Court's opinion concerns its attempted distinction between, on the one hand, the protection afforded by the privilege against self-incrimination and, on the other, the effect of the invocation of the privilege. Since the privilege itself is defined in terms of the incriminating effect of truthful testimony, it does not seem irrational to weigh alternative methods for protecting this constitutional right in terms of their effect as well. As the Court demonstrates, ante, at 124-125, a grant of immunity may be a constitutionally adequate response to invocation of the privilege without perfectly replicating the effect of total silence, at least where a civil use of the testimony is concerned. But that observation, for me, does not obviate the relevance of a comparison between silence and immunity in determining whether the protection afforded by the latter ensures that the privilege against self-incrimination has been properly preserved. Whether as a matter of logic, history, or experience, it does not follow that an analogy is robbed of all force merely because it is not always or singly controlling in every imaginable circumstance. Compare Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 1658, 32 L.Ed.2d 212 (1972), and Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct. 497, 506, 100 L.Ed. 511 (1956), with ante, at 127-128. See also O. Holmes, The Common Law 1 (1881). The Court's cases long have regarded the right to remain silent in the face of compelled incrimination as a touchstone for Fifth Amendment protection. See Kastigar v. United States, 406 U.S., at 461, 92 S.Ct., at 1665; Brown v. Walker, 161 U.S. 591, 596-597, 16 S.Ct. 644, 646-647, 40 L.Ed. 819 (1896). The Court may be prepared now to deviate from that course; I am not so prepared. 43 Nonetheless, I remain convinced that "[t]he Fifth Amendment privilege against compulsory self-incrimination provides no protection for the commission of perjury." United States v. Mandujano, 425 U.S. 564, 609, 96 S.Ct. 1768, 1792, 48 L.Ed.2d 212 (1976) (opinion concurring in judgment). The privilege operates only to protect the witness from compulsion of truthful testimony of an incriminating nature. Perjury or the making of false statements under a grant of immunity thus violates a basic assumption upon which the privilege and hence the immunity depend. Preserving the integrity of the immunity "bargain," ante, at 130, by allowing the use of immunized testimony for the limited purpose of proving that the terms of immunity have been criminally breached, is an integral part of the "rational accommodation between the imperatives of the privilege and the legitimate demands of government" upon which the entire theory of immunity rests. Kastigar v. United States, 406 U.S., at 446, 92 S.Ct., at 1657. See Glickstein v. United States, 222 U.S. 139, 141, 32 S.Ct. 71, 72, 56 L.Ed. 128 (1911); United States v. Tramunti, 500 F.2d 1334, 1342 (CA2), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). Prosecutions for perjury or making false statements differ in this respect from all other instances in which, but for the grant of immunity, the witness' testimony might be used. It is for this reason, in my view, that they have been regarded as "a 'narrow exception' to the principle that a witness should be treated as if he had remained silent after invoking the Fifth Amendment privilege." Ante, at 128. Since I find this ground sufficient to dispose of the present case, I need not decide at this juncture whether I fully agree with what seem to be the broader implications of the Court's analysis and opinion. 1 Title 18 U.S.C. § 1623(a) (1976 ed., Supp. II) provides in pertinent part: "Whoever under oath . . . in any proceeding before . . . [a] grand jury of the United States knowingly makes any false material declaration . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both." 2 One of the officers was subsequently convicted of collecting extensions of credit by extortionate means in violation of 18 U.S.C. § 894, mail fraud in violation of 18 U.S.C. § 1341, racketeering in violation of 18 U.S.C. § 1962, and conspiracy in violation of 18 U.S.C. § 371. 3 Title 18 U.S.C. § 6002 provides: "Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to— "(1) a court or grand jury of the United States, "(2) an agency of the United States, or "(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." 4 After the issuance of the immunity order, respondent had still refused to testify before the grand jury. He agreed to testify after being held in civil contempt under 28 U.S.C. § 1826 and confined for six days. 5 The Seventh Circuit agrees with the Court of Appeals below that the Government may introduce into evidence so much of the witness' testimony as is essential to establish the corpus delicti of the offense of perjury. United States v. Patrick, 542 F.2d 381, 385 (1976). The Second and Tenth Circuits have held that false immunized testimony is admissible, but truthful immunized testimony is not, in a subsequent prosecution for perjury. United States v. Dunn, 577 F.2d 119, 125-126 (CA10 1978), rev'd on other grounds, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979); United States v. Berardelli, 565 F.2d 24, 28 (CA2 1977); United States v. Moss, 562 F.2d 155, 165 (CA2 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978); United States v. Housand, 550 F.2d 818, 822 (CA2 1977); United States v. Kurzer, 534 F.2d 511, 518 (CA2 1976). The Sixth and Eighth Circuits have held that immunized testimony may be used for any purpose in such a prosecution. Daniels v. United States, 196 F. 459, 462-463 (CA6 1912); Edelstein v. United States, 149 F. 636, 642-644 (CA8 1906). 6 A principal reason for this divergence in approach originates in the statement in Counselman v. Hitchcock, 142 U.S. 547, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892), that an immunity statute "cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect." This language was reiterated only last Term in New Jersey v. Portash, 440 U.S. 450, 456-457, 99 S.Ct. 1292, 1295-1296, 59 L.Ed.2d 501 (1979). As discussed in Part III, infra, strictly speaking even a "transactional" immunity statute, to say nothing of a "use" immunity statute, does not conform to this definition: The mere grant of immunity and consequent compulsion to testify places a witness asserting his Fifth Amendment privilege in the dilemma of having to decide whether to answer the questions truthfully or falsely, a dilemma he never would have faced had he simply been permitted to remain silent upon the invocation of his privilege. Yet properly drawn immunity statutes have long been recognized as valid in this country. Infra, at 125. And it is likewise well established that one may be prosecuted for making false statements while giving immunized testimony. Infra, at 126-127. A source of further difficulty for the Courts of Appeals is language from our recent decisions that, if taken literally, would preclude the introduction of immunized testimony even for the purpose of establishing the "corpus delicti " or core of the perjury offense. In Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972), in which we upheld the constitutionality of this immunity statute against a challenge that it did not provide protection coextensive with the Fifth Amendment, we said that it "prohibits the prosecutorial authorities from using the compelled testimony in any respect." And in New Jersey v. Portash, supra, 440 U.S., at 459, 99 S.Ct., at 1297, we stated that under the Fifth and Fourteenth Amendments "a defendant's compelled statements . . . may not be put to any testimonial use whatever against him in a criminal trial. '. . . [a ]ny criminal trial use against a defendant of his involuntary statement is a denial of due process of law.' " (Emphasis in original.) Doubtless as a result of these divergent holdings and statements none of the Court of Appeals decisions referred to in footnote 5, supra, holds that false immunized testimony may not form the basis for a prosecution for perjury or false swearing, but they differ as to how much of the relevant immunized testimony other than that asserted by the Government to be false may be introduced in such a prosecution. 7 Pub.L. 91-452, § 201(a), 84 Stat. 926. The purpose of the Act was "to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." 84 Stat. 923. 8 See, e. g., Measures Relating to Organized Crime, Hearings on S. 30, etc., before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 282-284 (1969) (remarks of Representative Poff and Senator McClellan). At the time the new statute was being considered, there were more than 50 separate federal immunity statutes. Id., at 282. 9 Second Interim Report of the National Commission on Reform of Federal Criminal Laws, Mar. 17, 1969, reproduced in Hearings on S. 30, supra n. 8, at 292. See also id., at 15, 326; National Commission on Reform of Federal Criminal Laws, Working Papers 1405 (1970). 10 S.Rep.No. 91-617, p. 145 (1969); H.R.Rep.No. 91-1549, p. 42 (1970), U.S.Code Cong. & Admin.News 1970, p. 4007. Representative Poff, the bill's chief sponsor in the House quoted Mr. Justice WHITE's observation in Murphy v. Waterfront Comm'n, 378 U.S. 52, 107, 84 S.Ct. 1594, 1618, 12 L.Ed.2d 678 (1964), 107, 84 S.Ct., at 1618, that " '[i]mmunity must be as broad as, but not harmfully and wastefully broader than, the privilege against self-incrimination.' " 116 Cong.Rec. 35291 (1970). We express no opinion as to the possible intimation in the Reports that the Fifth Amendment would have prohibited an immunity statute any broader than § 6002. 11 Thus, the Court of Appeals' position is basically a halfway house that does not withstand logical analysis. If the rule is that a witness who is granted immunity may be placed in no worse a position than if he had been permitted to remain silent, the principle that the Fifth Amendment does not protect false statements serves merely as a piece of a legal mosaic justified solely by stare decisis, rather than as part of a doctrinally consistent view of that Amendment. 12 Thus, the Court observed: "Petitioner was confronted by a comprehensive system of federal and state prohibitions against wagering activities; he was required, on pain of criminal prosecution, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant 'link in a chain' of evidence tending to establish his guilt." 390 U.S., at 48, 88 S.Ct., at 703. And "[e]very aspect of petitioner's wagering activities," the Court continued, "subjected him to possible state or federal prosecution," and the "[i]nformation obtained as a consequence of the federal wagering tax laws is readily available to assist the efforts of state and federal authorities to enforce these penalties." Id., at 47, 88 S.Ct., at 702. 13 As recognized by one commentator, Shakespeare's lines here express sound legal doctrine: "His acts did not o'ertake his bad intent; And must be buried but as an intent That perish'd by the way: thoughts are no subjects, Intents but merely thoughts." Measure for Measure, Act V, Scene 1; G. Williams, Criminal Law, The General Part 1 (2d ed.1961).

01

445 U.S. 74 100 S.Ct. 925 63 L.Ed.2d 215 William E. BLOOMER, Jr., Petitioner,v.LIBERTY MUTUAL INSURANCE COMPANY, etc. No. 78-1418. Argued Dec. 4, 1979. Decided March 3, 1980. Syllabus Held: A stevedore's lien for the amount of its compensation payment to an injured longshoreman under the Longshoremen's and Harbor Workers' Compensation Act against the longshoreman's recovery in a negligence action against the shipowner may not be reduced by an amount representing the stevedore's proportionate share of the longshoreman's legal expenses in obtaining recovery from the shipowner. The language, structure, and history of the Act support this conclusion, rather than the application of the equitable "common fund" doctrine that when a third person benefits from litigation instituted by another, that person may be required to bear a portion of the expenses of suit. Pp. 77-78. 586 F.2d 908, affirmed. Alan C. Rassner, New York City, for petitioner. Douglas A. Boeckmann, New York City, for respondent. Mr. Justice MARSHALL delivered the opinion of the Court. 1 Under the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq., a longshoreman is entitled to receive compensation payments from his stevedore for disability or death resulting from an injury occurring on the navigable waters of the United States. If the longshoreman believes that his injuries warrant a recovery in excess of the compensation provided under the Act, he may also bring a negligence action against the owner of the vessel on which the injury occurred. The longshoreman's recovery from the shipowner is subject to the stevedore's lien in the amount of the compensation payment. The question for decision is whether the stevedore's lien must be reduced by a proportionate share of the longshoreman's expenses in obtaining recovery from the shipowner, or whether the stevedore is instead entitled to be reimbursed for the full amount of the compensation payment. 2 * Petitioner William E. Bloomer, Jr., was injured during the course of his employment on board the vessel S. S. Pacific Breeze. He received $17,152.83 in compensation from respondent Liberty Mutual Insurance Co., the designated carrier of workers' compensation for petitioner's employer, Connecticut Terminal Co.1 Thereafter petitioner brought this diversity action against the owner of the vessel. He alleged that the shipowner had negligently created hazardous conditions on board the vessel, that the ship's deck was slippery and dangerous, and that as a result he had fallen and incurred severe injuries. 3 During settlement negotiations, petitioner's counsel gave respondent notice of the pending action and requested it to reduce its lien by a share of the costs of recovery. That share would be computed as an amount bearing the same ratio to the total cost of recovery as the compensation payments bear to the total recovery. Respondent refused petitioner's request, asserted its right to full reimbursement, and successfully moved to intervene in the action. Soon thereafter petitioner settled with the shipowner for $60,000. He moved for summary judgment directing that respondent's lien on the recovery be reduced by an amount representing its proportionate share of the expenses of the suit against the shipowner. Petitioner claimed that since the recovery from the shipowner would benefit respondent, equity required that respondent bear a portion of the expenses of obtaining that recovery. 4 The District Court denied petitioner's motion,2 and the United States Court of Appeals for the Second Circuit affirmed. Bloomer v. Tong, 586 F.2d 908 (1978). The Court of Appeals concluded that a stevedore should not be required to pay a share of the longshoreman's legal expenses in a suit brought against the shipowner. We granted certiorari to resolve this recurring question, on which the Courts of Appeals have been divided.3 441 U.S. 942, 99 S.Ct. 2158, 60 L.Ed.2d 1043 (1979). We affirm. II 5 Petitioner's argument amounts to an appeal to the equitable principle that when a third person benefits from litigation instituted by another, that person may be required to bear a portion of the expenses of suit. He invokes cases establishing that in certain circumstances, courts should exercise their equitable powers to charge beneficiaries with a share of the expenses of obtaining a "common fund" through litigation. See Boeing Co. v. Van Gemert, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257-259, 95 S.Ct. 1612, 1621-1622, 44 L.Ed.2d 141 (1975); id., at 275-280, 95 S.Ct., at 1630-1633 (MARSHALL, J., dissenting); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). When measured against the language, structure, and history of the Longshoremen's and Harbor Workers' Compensation Act, however, petitioner's argument must fail. 6 The Act provides a comprehensive scheme governing an injured longshoreman's rights against the stevedore and shipowner. The longshoreman is not required to make an election between the receipt of compensation and a damages action against a third person, 33 U.S.C. § 933(a). After receiving a compensation award from the stevedore, the longshoreman is given six months within which to bring suit against the third party. 33 U.S.C. § 933(b). If he fails to seek relief within that period, the acceptance of the compensation award operates as an assignment to the stevedore of the longshoreman's rights against the third party. The Act makes explicit provision for the distribution of any amount obtained by the stevedore in a suit brought pursuant to that assignment. The stevedore is entitled to reimbursement of all compensation benefits paid the employee, and its costs, including attorney's fees. Of the remainder, four-fifths is distributed to the longshoreman, and one-fifth "shall belong to the employer." 33 U.S.C. § 933(e).4 7 The Act does not expressly provide for the distribution of amounts recovered in a suit brought by the longshoreman. The unambiguous provision that the stevedore shall be reimbursed for all of his legal expenses if he obtains the recovery does, however, speak with considerable force against requiring him to bear a part of the longshoreman's costs when the longshoreman recovers on his own. There is no reason to believe that Congress intended a different distribution of the expenses of suit merely because the longshoreman has brought the action. Petitioner asserts, however, that in the absence of an explicit statutory resolution, the recovery against the shipowner represents a common fund for whose creation the stevedore may properly be charged. To evaluate this argument we turn to the history of the relevant provisions of the Act. III 8 As originally enacted in 1927, the Act required a longshoreman to choose between the receipt of a compensation award from his employer and a damages suit against the third party. Act of Mar. 4, 1927, § 33, 44 Stat. 1440. If the longshoreman elected to receive compensation, his right of action was automatically assigned to his employer. In 1938, however, Congress provided that in cases in which compensation was not made pursuant to an award by a deputy commissioner (appointed by the Secretary of Labor, see 33 U.S.C. § 940), the longshoreman would not be required to choose between the compensation award and an action for damages. Under the 1938 amendments, no election was required unless compensation was paid pursuant to such an award. See Act of June 25, 1938, ch. 685, §§ 12, 13, 52 Stat. 1168. 9 Like the present version, the Act as amended in 1938 did not make provision for the distribution of amounts recovered from the third party in a suit brought by the longshoreman. The lower courts, however, interpreted the Act to require that the stevedore be reimbursed for his compensation payment out of the sum recovered from the third party. Congress was understood not to contemplate double recovery on the longshoreman's part, and the stevedore did not, therefore, lose the right to reimbursement for its compensation payment. See, e. g., The Etna, 138 F.2d 37 (CA3 1943); Miranda v. Galveston, 123 F.Supp. 889 (SD Tex.1954); Fontana v. Pennsylvania R. Co., 106 F.Supp. 461 (SDNY 1952) (Weinfeld, J.), aff'd on opinion below sub nom. Fontana v. Grace Line, Inc., 205 F.2d 151 (CA2), cert. denied, 346 U.S. 886, 74 S.Ct. 137, 98 L.Ed. 390 (1953). 10 Under the 1938 legislation the lower courts also decided that the stevedore should not be required to bear a proportionate share of the longshoreman's legal expenses. To force the stevedore to do so, it was observed, would guarantee the longshoreman a total recovery in excess of the amount he received in his third-party action. Solely by virtue of the compensation scheme then the longshoreman would receive a greater sum than would be possible in an ordinary suit for damages. At the same time the stevedore would be prevented from recovering the full amount of its compensation payment. The courts concluded that these results would violate legislative purposes made manifest by the express provision that the employer may recover its legal expenses from the fund created by its own suit against the third party. See Davis v. United States Lines Co., 253 F.2d 262 (CA3 1958); Oleszczuk v. Calmar S. S. Corp., 163 F.Supp. 370 (D.C.Md.1958); Fontana v. Pennsylvania R . Co., supra, 106 F.Supp., at 463-464. 11 In 1959, Congress amended the Act to delete the election-of-remedies requirement altogether. Act of Aug. 18, 1959, 73 Stat. 391. Existing law was felt to "wor[k] a hardship on an employee by in effect forcing him to take compensation under the act because of the risks involved in pursuing a lawsuit against a third party." S.Rep.No. 428, 86th Cong., 1st Sess., 2 (1959), U.S.Code Cong. & Admin.News, p. 2134. The result was that an injured employee "usually elects to take compensation for the simple reason that his expenses must be met immediately, not months or years after when he has won his lawsuit." Ibid., U.S.Code Cong. & Admin.News, p. 2134, see H.R.Rep.No.229, 86th Cong., 1st Sess. (1959). 12 Responding to this inequity, the 1959 amendment provided that even when compensation was paid pursuant to an award of the deputy commissioner, the longshoreman's right of action would not be assigned to the stevedore until six months from the date of the award. The legislative history demonstrates that Congress did not intend to alter the rule allowing the stevedore to recover the full amount of its lien from the longshoreman's third-party recovery. An employee "would not be entitled to double compensation," for "an employer must be reimbursed for any compensation paid to the employee out of the net proceeds of the recovery." S.Rep.No.428, supra, at 2; U.S.Code Cong. & Admin.News, p. 2135. During the hearings on the 1959 amendments, the rule that an employer would not be required to bear a proportionate share of the longshoreman's cost of recovery was specifically drawn to Congress' attention, and one witness suggested that it should be abandoned.5 Instead, Congress elected not to disturb the existing rule.6 Recognizing that no change had been contemplated, the courts continued to hold that a stevedore would not be required to bear a proportionate share of the longshoreman's legal expenses. See Haynes v. Rederi A/S Aladdin, 362 F.2d 345 (CA5 1966); Ashcraft & Gerel v. Liberty Mutual Ins. Co., 120 U.S.App.D.C. 51, 343 F.2d 333 (1965); Petition of Sheffield Tankers Corp., 222 F.Supp. 441 (ND Cal.1963). 13 In 1972 Congress enacted more extensive Amendments to the Act, see Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 262, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521 (1979), and it is these Amendments that, according to petitioner, justify a change in the rule with respect to attorney's fees. Concerned that compensation benefits had been far too low, Congress altered the benefit structure of the Act so as to increase both maximum and minimum benefits substantially.7 These increases were linked to two provisions designed to reduce litigation and to ensure that stevedores would have sufficient funds to pay the additional compensation. First, Congress abolished the unseaworthiness remedy for longshoremen, recognized in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and limited the longshoreman's action against the shipowner to one based on negligence. Second, Congress eliminated the third-party action by the shipowner against the stevedore, recognized in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). In that case the Court held that a shipowner could obtain damages from the stevedore when it showed that the stevedore had breached its warranty to the shipowner of workmanlike service. As the House Report notes, the consequence was that "a stevedore-employer is indirectly liable for damages to an injured longshoreman who utilizes the technique of suing the vessel," with the result "that much of the financial resources which could better be utilized to pay improved compensation benefits were now being spent to defray litigation costs." H.R.Rep.No.92-1441, p. 5 (1972); see S.Rep.No.92-1125, p. 9 (1972), U.S.Code Cong. & Admin.News, pp. 4698, 4702. Indeed, there was considerable testimony during the hearings that third-party actions had resulted in congested courts and that the primary beneficiaries had been lawyers, not injured longshoremen.8 The Senate Report stated that "[t]he social costs of these law suits, the delays, crowding of court calendars and the need to pay for lawyers' services have seldom resulted in a real increase in actual benefits for injured workers." Id., at 4. The elimination of the shipowner's cause of action against the stevedore was intended to reduce litigation, immunize stevedores and their insurers from liability in third-party actions, and assure conservation of stevedore resources for compensation awards to longshoremen. 14 Witnesses also brought to the attention of Congress the longstanding rule9 that an employer could recover the full amount of its compensation award from the longshoreman's recovery against the shipowner.10 Congress did not, however, enact any legislation concerning that rule. 15 Petitioner argues that the 1972 Amendments so altered the equities as to compel a holding that a stevedore must pay a proportionate share of the longshoreman's expenses in a third-party action brought against the shipowner. He observes that before the amendments, the longshoreman and the stevedore had adverse interests in the third-party action: if the longshoreman were successful in that suit, the shipowner frequently would attempt to require the stevedore to make payment of amounts due the longshoreman. With the abolition of the shipowner's cause of action, the stevedore and the longshoreman had a common interest in the longshoreman's recovery against the shipowner. Petitioner concludes that the common-fund doctrine should be available to permit the employee to recover from the stevedore a proportionate share of the expenses of suit. 16 In light of the Act and its legislative history, however, we are unable to accept petitioner's argument. It is of course true that the stevedore and longshoreman now have a common interest in the longshoreman's recovery against the shipowner, but it does not follow that the stevedore should be required to pay a share of the longshoreman's legal expenses. Congress has not modified 33 U.S.C. § 933(e), providing that the stevedore is not required to pay its legal expenses in cases in which it has recovered against the shipowner pursuant to an assignment from the longshoreman. Moreover, in 1972 Congress was informed of, but did not alter, the uniform rule that the longshoreman's legal fees would be paid by the longshoreman alone. In these circumstances we are reluctant to take steps to change that rule on our own. See Edmonds v. Compagnie Generale Transatlantique, supra, 443 U.S., at 273, 99 S.Ct., at 2763. 17 In addition, to the extent that the 1972 amendments offer guidance, they strongly suggest that the rule for payment of attorney's fees, was not intended to be altered. The legal expenses incurred by stevedores in connection with third-party actions were understood to be a major obstacle to the funding of increased compensation payments. Numerous witnesses testified that third-party actions frequently inured to the benefit of lawyers, depleting the stevedore's resources and congesting the courts without aiding the injured employee. It would be ironic indeed if statutory amendments designed to eliminate the stevedore's liability in connection with third-party actions were interpreted to give birth to an entirely new liability in the form of a charge for the longshoreman's legal expenses.11 We are unwilling to attribute to Congress an intention to allow creation of a new liability irreconcilable with its general desire to reduce litigation and to ensure conservation of the legal expenses of stevedores and their insurers.12 18 Finally, we return to the original basis for the rule that a stevedore would not be required to pay a portion of the longshoremen's expenses in his suit against the shipowner. The compensation award was intended to be an immediate and readily available payment to the injured longshoreman. By receiving this payment, the longshoreman was not foreclosed from pursuing an action against the shipowner. At the same time, he was not entitled to double recovery, and the stevedore would be reimbursed in full for his compensation payment.13 The result we reach enables the longshoreman to recover an amount no less than that which he would receive through an ordinary negligence action,14 and also immunizes the stevedore from liability in connection with the third-party action. If we were to accept petitioner's view, an injured longshoreman would ultimately receive a sum equal to the full amount of his recovery against the shipowner and, in addition, a supplement consisting of the stevedore's contribution to the longshoreman's legal expenses. This supplement would represent a windfall in excess of the amount the longshoreman received as compensation for the injuries he has suffered. The stevedore would not obtain reimbursement for the full amount of its compensation payment, but would instead have that amount reduced by a possibly substantial legal fee. This result would be contrary to the allocation of attorney's fees expressly provided by Congress for suits brought by the stevedore pursuant to an assignment from the longshoreman. In these circumstances we do not believe that the Act and its legislative history can fairly be read to support the distribution proposed by petitioner.15 The judgment of the Court of Appeals is 19 Affirmed. 20 Mr. Justice BLACKMUN, dissenting. 21 The Court's approach in this case strikes me as somewhat crabbed. By tilting with the specter of "double recovery," the Court adopts a construction of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., that relegates the injured longshoreman's welfare to secondary status, well behind the interest of his stevedore-employer in conserving resources. 22 Under the Court's rule, the stevedore has everything to gain and nothing to lose. The longshoreman takes the risk and the worry of the litigation and, if he gains enough, the stevedore is home free. This result does not seem to me to square with the Court's recent recognition that the Act should be construed with the beneficent purpose of worker protection foremost in mind. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 268, 97 S.Ct. 2348, 2359, 53 L.Ed.2d 320 (1977). Nor does it entirely square with the modern concept that the costs of industrial accidents are expenses to be borne by the industrial enterprise and not by the injured workman.1 It also fails to do equity where equity is due. Since I cannot agree that Congress has required us so to deviate from the principles of equity and the governing purposes of the Act, I respectfully dissent. 23 The Court recognizes, ante, at 79, that although Congress has provided a detailed scheme for the distribution of the amount recovered in a third-party action initiated by the stevedore, it has never fixed by statute the details of distribution when it is the longshoreman who brings suit. The Court, nonetheless, discovers and espouses a settled judicial rule for division of the recovery in an action by the longshoreman, and it transforms that rule into a statutory mandate by pronouncing that we should not presume to change what the Court thinks Congress, by inaction, apparently has left in force. Ante, at 85-86. I feel the Court has oversimplified the variegated history of the judicial "rule," has overdrawn the clarity of congressional approval of it, and has failed to estimate the degree to which the rationale for exonerating the stevedore from bearing a portion of the attorney's fees was undermined by the 1972 Amendments to the Act. 24 The earliest cases mentioned by the Court, The Etna, 138 F.2d 37 (CA3 1943), and Fontana v. Pennsylvania R. Co., 106 F.Supp. 461 (SDNY 1952), aff'd mem. sub nom. Fontana v. Grace Line, Inc., 205 F.2d 151 (CA2), cert. denied, 346 U.S. 886, 74 S.Ct. 137, 98 L.Ed. 390 (1953), chiefly concerned the broad question, not at issue here, whether the stevedore is entitled to any recoupment from the longshoreman's recovery against the shipowner. These cases established that the stevedore is entitled to recoupment, and thus that the longshoreman is not to receive the "double recovery" of full statutory compensation plus full damages in an action at law. No one, at this juncture, doubts the validity of this holding or its approval by Congress. See 33 U.S.C. § 933(f); S.Rep.No.428, 86th Cong., 1st Sess., 2 (1959). The question we presently face is a much narrower one that a general dislike for any double recovery does not at all resolve. 25 To be sure, Fontana, supra, and Davis v. United States Lines Co., 253 F.2d 262 (CA3 1958), held, as the Court does today, that attorney's fees for a third-party action must be borne in their entirety by the longshoreman. These cases drew support for this conclusion from both the statutory division of recovery when the stevedore brings suit and the view that the "expense of securing the recovery is, as in equity it should be, a first charge against the fund itself." Fontana v. Pennsylvania R. Co., 106 F.Supp. at 464. As a review of subsequent case law demonstrates, however, this reasoning never has achieved the broad acceptance that the Court's opinion implies. In the Fourth and the Fifth Circuits, and perhaps even in the Second Circuit, alternative approaches to the problem have been advocated and applied. 26 In Ballwanz v. Jarka Corp., 382 F.2d 433 (1967), the Fourth Circuit adopted an entirely different rationale. The court recognized that Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), which permitted shipowners to bring indemnity actions against stevedores, produced a "rotary situation" in which the stevedore was effectively aligned with the shipowner against the third-party suit. 382 F.2d, at 434. As a result, recoupment of the stevedore's compensation lien from the longshoreman's recovery involved "no more than a transfer of the charge in that amount from its [insurer's] loss as compensation carrier to its loss as liability carrier." Id., at 435. It was the contrariety of interests and lack of true benefit to the stevedore, and not the arguments advanced in Fontana and Davis, that led the court to refuse proration of fees. 27 In the Fifth Circuit, the proper distribution of recoveries in third-party actions initiated by longshoremen has been the subject of continuing debate. Strachan Shipping Co. v. Melvin, 327 F.2d 83 (1964), applied Fontana § conclusion that attorney's fees are a "first charge" against the recovery in a case where the recovery was so small that nothing was left for the longshoreman. The decision provoked a vigorous dissent, which proposed a different reading of Fontana and Davis that would give the compensation lien priority over the fees. Id., at 87-89. This alternative appears to have been applied in Haynes v. Rederi A/S Aladdin, 362 F.2d 345, 351 (CA5 1966), cert. denied, 385 U.S. 1020, 87 S.Ct. 731, 17 L.Ed.2d 557 (1967), albeit on the ground that the stevedore was represented in the action by its own counsel. Eventually, however, both readings of the Fontana-Davis "rule" were displaced in the Fifth Circuit by an approach that, in certain circumstances, required the longshoreman and the stevedore to "pay attorney's fees and litigation expenses in proportion to their recoveries." Chouest v. A & P Boat Rentals, Inc., 472 F.2d 1026, 1035-1036, cert. denied, sub nom. Travelers Ins. Co. v. Chouest, 412 U.S. 949, 93 S.Ct. 3012, 37 L.Ed.2d 1002 (1973). 28 In the Second Circuit, Fontana § approach has not been uniformly followed. Landon v. Lief Hoegh & Co., 521 F.2d 756, 761 (1975), cert. denied, sub nom. A/S Arcadia v. Gulf Ins. Co., 423 U.S. 1053, 96 S.Ct. 783, 46 L.Ed.2d 642 (1976), treated the compensation lien as an "express trust for the benefit of the employer" with the longshoreman as statutory trustee. In the District Courts, moreover, both the "conflict" theory developed in Ballwanz and the approach advocated by the Strachan dissent gained some currency. See, e. g., Spano v. N. V. Stoomvaart Maatschappij "Nederland," 340 F.Supp. 1194 (SDNY 1971); Russo v. Flota Mercante Grancolombiana, 303 F.Supp. 1404, 1407 (SDNY 1969). These cases were subsequently disapproved in Valentino v. Rickners Rhederei, G. M. B. H., §§ Etha, 552 F.2d 466 (CA2 1977), which reinstated the Fontana rationale. 29 I mention these variations and counterpoints to the Fontana-Davis theme not to challenge the Court's assertion that, prior to the 1959 and 1972 amendments to the Act, stevedores generally were exonerated from bearing a portion of attorney's fees incurred in longshoreman-initiated actions, but rather to suggest that the Court errs when it implies that the case law presented a settled judicial construction of the Act for Congress to approve. Indeed, the situation was even more complicated than this brief exposition illustrates, since the various rationales employed by the courts led them into disarray over the handling of attorney's fees in cases where the third-party recovery was insufficient to satisfy both the fees and the stevedore's compensation lien in their entirety. See Valentino v. Rickners Rhederei, G. M. B. H., §§ Etha, 417 F.Supp. 176, 177-179 (EDNY 1976), aff'd on other grounds, 552 F.2d 466 (CA2 1977). The legislative history relied upon by the Court, ante, at 80-81, 84, fails to show that Congress delved into the intricacies of this judicial debate, or indeed that it did more than barely scratch the surface in consideration of fee allocations in actions brought by longshoremen. The most that can be gleaned from this history is that Congress intended not to interfere with judicial developments in this sphere. 30 As a result, I think that the Court informs congressional inaction with the wrong meaning, and that it draws an analogy to the statutory allocation of stevedore-initiated recoveries where none, in fact, exists. Had Congress intended rote application of the allocation scheme in 33 U.S.C. § 933(e) to recovery in a longshoreman-initiated action, specification of this result would have been a simple task, and one would have expected Congress to say so. Instead, despite the obvious prevalence of such suits,2 Congress left the matter to the judicial process. Although it is somewhat precarious to find significance in a congressional omission, I view the absence of action in this case as a clear signal that Congress regarded the allocation of a recovery in a suit by a longshoreman as a more fluid and complicated matter than allocation in a suit by a stevedore, and that it left the courts free to balance the equities instead of commanding adherence to a strict "arithmetic ranking" of liens. See Mitchell v. Scheepvaart Maatschappij Trans-Ocean, 579 F.2d 1274, 1279 (CA5 1978). 31 Adaptation of the statutory framework, of course, might be desirable if it achieved an equitable result. But it does not. Indeed, the analogy to the division of a recovery under § 933(e) itself is flawed. When the stevedore brings the lawsuit, its own recovery comes first after expenses and costs of litigation have been paid; the longshoreman, as nonparticipating beneficiary, receives only a portion of the remainder. In contrast, under the Court's ruling, the longshoreman who brings suit must wait in line until the nonparticipating stevedore's interests have been satisfied in full. Under the statute, then, the party who takes the risk of loss receives priority of treatment. Under the Court's ruling, he does not. The apparent symmetry of a strict analogy to the statutory formula thus produces, for the longshoreman, an asymmetrical result. Considerations of equity surely do not require that approach. 32 As I weigh the equities, the most persuasive reason heretofore for exonerating the stevedore from bearing a proportionate share of attorney's fees has been the stevedore's contingent liability for indemnity of the shipowner under Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). That liability, of course, was eliminated by the 1972 Amendments to the Act. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 262, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521 (1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S., at 261-262, 97 S.Ct., at 2356. Thus, it is now clear from the outset of each longshoreman's suit that the attorney's efforts serve the interests of the stevedore as well as those of the longshoreman. If the action is successful, the stevedore obtains recoupment of the compensation benefits it has paid, without risk, without the jeopardy to customer relations that might arise if the stevedore or its insurer brought the suit, and without adjustment for the possibility that the stevedore itself is partly responsible for the injury. The amount of the stevedore's recoupment ordinarily depends directly on the lawyer's skill in proving both the shipowner's negligence and damages. This direct pecuniary interest in the outcome of the litigation justifies, in my view, an equitable allocation of the costs of bringing suit in proportion to recovery from the common fund. See Sprague v. Ticonic National Bank, 307 U.S. 161, 166-167, 59 S.Ct. 777, 779-780, 83 L.Ed. 1184 (1939). Without that allocation, the longshoreman must bear all the risk for only a limited part of the benefit. 33 In addition to eliminating the only sound reason for refusing an allocation on equitable grounds, the 1972 Amendments also show clearly that congressional concern was primarily for the workman and not for the stevedore-employer or for the shipowner. The chief purpose of the Amendments was to benefit the longshoreman. Congress' desire to reduce excessive litigation and thus to conserve stevedore resources, of which the Court makes so much, was incidental and secondary to this purpose. When, for example, Congress eliminated the litigation merry-go-round produced by the indemnity and unseaworthiness actions created in Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., supra, and Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), see ante, at 82-83, it did so not out of naked solicitude for shipowners and stevedores, but because this layering of recoveries failed to produce "a real increase in actual benefits for injured workers." S.Rep.No.92-1125, p. 4 (1972), quoted, ante, at 84. Yet the Court now advances this secondary purpose to justify a reduction of the longshoreman's recovery in the third-party negligence action that Congress retained primarily for his benefit; and it does so because proration of attorney's fees would result in a "real increase" in the longshoreman's total compensation. I cannot avoid the suspicion that congressional intent has been stood on its head. 34 The Court also makes much of the putative "windfall" a longshoreman would receive if petitioner prevailed. Ante, at 87. The longshoreman would receive no windfall. Any costs or fees he must pay reduce his net recovery below the amount of his adjudicated injuries. This deficit would be alleviated, but never exceeded, if the stevedore were charged with a proportionate share of the attorney's fees. The longshoreman, of course, would be better off than if he had to depend either on the statutory compensation or on the negligence suit alone. But Congress long ago eliminated the necessity of electing a remedy, and an increase in total recovery accomplished by resort to both methods of redress is fully consistent with the statutory scheme. So long as the longshoreman's total compensation remains less than his actual damages, there is no true "double recovery." 35 To use the Court's own adjective, ante, at 85, it is "ironic" that from this litigation petitioner will receive, by today's ruling, only $2,779.57 more than the attorney's fees of $19,932.40. The Court thus acts to ensure that third-party actions will remain, as they were before the 1972 Amendments, a litigation playground for others instead of a method by which the injured longshoreman realistically may hope to recover for losses that are not covered by the statutory compensation scheme. I shall be interested to see whether the Court adheres to its present logic when presented with a case where the third-party recovery is so small that virtually nothing is left for the longshoreman. Where the recovery against the shipowner is less than the stevedore's lien and the expenses of the suit, see ante, at 86-87, n. 13, it is to be hoped that the injured longshoreman will not be required to disgorge part of his compensation payments. Yet such disgorgement would not be inconsistent with the gloss on congressional priorities that the Court imposes today. 1 For convenience we shall use the term "stevedore" to refer to both the employer and its insurer. 2 The District Court's distribution was as follows: Recovery $60,000.00 less expenses __(202.80) balance for distribution 59,797.20 less attorney's fee of one-third _(19,932.40) balance 39,864.80 less lien of respondent (17,152.83) net to petitioner 22,711.97 Under this distribution scheme, petitioner received a total of $39,864.80 from the stevedore and shipowner, an amount equivalent to the full $60,000 recovery minus expenses. Petitioner sought to have the fund distributed in the following manner: Recovery $60,000.00 less expenses (202.80) balance for distribution 59,797.20 less attorney's fee of one-third (19,932.40) balance 39,864.80 lien of respondent 17,152.83 less proportionate share of fees and expenses (.3355866 X $17,152.83) (5,756.26) 11,396.57 (11,396.57) net to petitioner 28,468.23 Under this distribution, petitioner would receive a total of $45,621.06, $5,756.26 over and above the amount representing his $60,000 damages recovery minus expenses. 3 The Ninth and Fourth Circuits have held that the stevedore should be charged with a share of the longshoremen's legal expenses, Bachtel v. Mammoth Bulk Carriers, Ltd., 605 F.2d 438 (CA9 1979); Swift v. Bolten, 517 F.2d 368 (CA4 1975). The First Circuit, like the Second, has disallowed apportionment, Cella v. Partenreederei MS Ravenna, 529 F.2d 15 (1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2175, 48 L.Ed.2d 799 (1976). The Fifth Circuit has adopted a third approach calling for an individualized inquiry into whether apportionment is fair in the particular case, Mitchell v. Scheepvaart Maatschappij Trans-Ocean, 579 F.2d 1274 (1978). 4 That section provides: "Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows: "(1) The employer shall retain an amount equal to— "(A) the expenses incurred by him in respect to such proceedings or compromise (including a reasonable attorney's fee as determined by the deputy commissioner or Board); "(B) the cost of all benefits actually furnished by him to the employee under section 907 of this title; "(C) all amounts paid as compensation; "(D) the present value of all amounts thereafter payable as compensation, . . . and the present value of the cost of all benefits thereafter to be furnished under section 907 of this title . . . ; and "(2) The employer shall pay any excess to the person entitled to compensation or to the representative, less one-fifth of such excess which shall belong to the employer." 5 See Hearings on Bills Relating to the Longshoremen's and Harbor Workers' Compensation Act before a Special Subcommittee of the House Committee on Education and Labor, 84th Cong., 2d Sess., 51-58 (1956) (discussing difference between New York law, which allowed an employer to receive full reimbursement of its workmen's compensation payment, and New Jersey law, which required proportionate payment of expenses); see also id., at 38. Indeed, the 1959 bill was largely modeled after the New York workmen's compensation provisions, see S.Rep.No.428, 86th Cong., 1st Sess., 3 (1959), and under New York law it was well established that the longshoreman would be required to pay his own legal fees. See Kussack v. Ring Constr. Corp., 1 App.Div.2d 634, 153 N.Y.S.2d 646 (1956), aff'd, 4 N.Y.2d 1011, 177 N.Y.S.2d 522, 152 N.E.2d 540 (1958); Hobbs v. Dairymen's League Co-op. Assn., 258 App.Div. 836, 15 N.Y.S.2d 694 (1939), appeal dism'd, 282 N.Y. 710, 26 N.E.2d 823 (1940). 6 That rule was expressly approved on the floor of the Senate: "Mr. BUTLER: . . . I understand that the bill merely amends section 33 of the Longshoremen's and Harbor Workers' Act, so as to permit an employee to bring a third-party liability suit without forfeiting his right to compensation under the act. It is my further understanding that the courts have consistently held that the present section 33 of the act gives the employer a lien on the employee's third party recovery for the compensation and benefits paid by the employer. "Is it the Senator's understanding, then, that the passage of this measure would in no way affect the present construction of the act with respect to the employer's lien on the employee's third-party recovery for compensation and benefits paid by the employer? "Mr. BARTLETT. The distinguished Senator from Maryland is correct. "In further explanation on this point, I ask unanimous consent to have printed at this point in the RECORD a brief statement from the Committee on Labor and Public Welfare . . . : " 'There is no necessity for a provision giving the employer a lien on the employee's third-party recovery for the compensation and benefits paid by the employer, inasmuch as the courts have construed the present section 33 as providing such lien. In addition, as a result of judicial construction of the existing section, the employee is entitled to deduct his expenses incurred in third-party proceedings,' " 105 Cong.Rec. 12674 (1959) (emphasis added). The express statement that the employee should deduct his expenses from the recovery is, of course, a plain indication that those expenses would not be borne by the stevedore. Cf. n. 13, infra. The House version of the amendment would have provided: "[T]he carrier liable for the payment of . . . compensation shall have a lien on the proceeds of any recovery from [a] third person, whether by judgment, settlement, or otherwise, after the deduction of the reasonable and necessary expenditures, including attorney's fees, incurred in effecting such recovery, to the extent of the total amount of compensation awarded under, or provided, or estimated, by this Act . . . ." H.R.Rep.No.229, 86th Cong., 1st Sess., 6 (1959). The House passed this version of the amendment, 105 Cong.Rec. 5561-5562 (1959), but later concurred in the Senate version on the evidence assumption that the Senate version also adopted existing judicial practice. See id., at 15343. 7 Before the Amendments, the maximum weekly compensation payment was $70; after the Amendments, the maximum is 200% of the national average weekly wage, to be determined annually by the Secretary of Labor. Before the Amendments, the minimum weekly payment was $18; the Amendments provide for a minimum in the amount of the lesser of the employee's full average weekly wage or 50% of the national average weekly wage. The Amendments increased or improved benefits in other ways not material here. See 33 U.S.C. §§ 906-910. 8 See Hearings on S. 2318 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 33, 38-39, 244, 258, 263, 271, 290, 304, 416, 431, 621-623, 632, 642, 661, 725, 730 (1972); Hearings on H.R. 247 et al. before the Select Subcommittee on Labor of the House Committee on Education and Labor, 92d Cong., 2d Sess., 47-48, 60, 85-86, 176 (1972). 9 Contrary to Mr. Justice BLACKMUN's suggestion, see post, at 92, that the somewhat divergent rationales adopted by the lower courts demonstrate that there was no settled rule prior to the 1972 Amendments, we have been unable to find a single case, and none is cited in the dissenting opinion, in which a court held that a stevedore would be required to pay a share of the longshoreman's legal expenses. The uniform rule was to the contrary, and it is that rule of which Congress was informed in 1959 and 1972 and which it approved in 1959. See n. 6, supra. 10 See Hearings on S. 2318 et al., supra n. 8, at 160, 371, 720; Hearings on H.R. 247 et al., supra n. 8, at 119, 157-158, 295. 11 The dissenting opinion suggests that the "chief" purpose of the 1972 Amendments was to benefit longshoremen, and that the distribution we approve would disserve this purpose in favor of the merely "incidental" intention to conserve stevedore expenses. Post, at 94-95. The attempted separation of the two legislative purposes is unpersuasive. Congress found it necessary to eliminate stevedore liability in connection with third-party actions precisely in order to assure that stevedores would have sufficient funds to pay vastly increased compensation benefits to longshoremen. In these circumstances it is for Congress, not this Court, to determine whether a requirement of proportional payment of legal expenses would ultimately benefit injured longshoremen, or instead longshoremen's lawyers, who were found to have been the primary beneficiaries of third-party actions in the past. See supra, at 82-84. 12 Petitioner suggests that a requirement of proportional payment would ultimately aid stevedores by encouraging third-party suits and thus making it more likely that stevedores will receive reimbursement for the compensation payment. The Act, however, contains special incentives designed to encourage the stevedore to bring suit on its own if the longshoreman elects not to do so. See n. 4, supra. 13 Respondent does not challenge the approach adopted in Fontana v. Pennsylvania R. Co., 106 F.Supp. 461, 463-464 (SDNY 1952), aff'd on opinion below sub nom. Fontana v. Grace Line, Inc., 205 F.2d 151 (CA2), cert. denied, 346 U.S. 886, 74 S.Ct. 137, 98 L.Ed. 390 (1953), under which the expenses of suit, including attorney's fees, represent the first charge on the recovery against the third party. See S.Rep.No.428, 86th Cong., 1st Sess., 2 (1959); n. 6, supra. Under this view, if the recovery against the shipowner is less than the sum of the lien and the expenses of suit, the longshoreman will receive the full amount of his expenses even if the remainder is insufficient to reimburse the stevedore for its lien. See Valentino v. Rickners Rhederei, G. M. B. H., §§ Etha, 552 F.2d 466 (CA2 1977). We do not today address the Valentino situation, and contrary to the implication of the dissent, nothing in our decision suggests that the stevedore's lien has priority over the longshoreman's expenses. 14 See n. 2, supra, illustrating that petitioner's distribution scheme would result in a recovery of $5,756.26 in excess of the amount he would receive if there were a simple negligence action and no compensation scheme. The Act explicitly allows attorney's fees in cases in which an employer declines to pay compensation, 33 U.S.C. § 928, and in cases in which the employer brings suit pursuant to an assignment from the longshoreman. These provisions reinforce the conclusion that if Congress had intended to allow proportionate sharing of legal expenses, it would have done so expressly. Petitioner suggests that the distribution we approve will result in a $5,756.26 windfall to the respondent, since it is in effect permitted to recover its lien without contributing to the costs of the recovery. But as explained in the text, our review of the Act and its legislative history persuades us that Congress intended the stevedore to recover the full amount of its lien, regardless of who brings the action. 15 Nothing we say today is intended to affect the established power of a court of equity to charge beneficiaries with a proportionate share of the costs of creating a common fund through litigation. See Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds, 87 Harv.L.Rev. 1597 (1974). Nor are we presented the question whether that power would be properly exercised in the setting of a workers' compensation scheme if the particular Act and its legislative history were ambiguous on the subject. For disparate results in the state courts, compare Burt v. Hartford Acc. & Ind—. Co., 252 Ark. 1236, 483 S.W.2d 218 (1972); Liberty Mut. Ins. Co. v. Western Cas. & Sur. Co., 111 Ariz. 259, 527 P.2d 1091 (1974); Commercial Union Ins. Co. v. Scott, 116 Ga.App. 633, 158 S.E.2d 295 (1967); Tucker v. Nason, 249 Iowa 496, 87 N.W.2d 547 (1958), with Quinn v. State, 15 Cal.3d 162, 124 Cal.Rptr. 1, 539 P.2d 761 (1975); Security Ins. Co. of Hartford v. Norris, 439 S.W.2d 68 (Ky.1969); Broussard, Broussard & Moresi, Ltd. v. State Auto & Cas. Underwriters Co., 287 So.2d 544 (La.App.1973), cert. denied, 290 So.2d 908 (La.1974); Carter v. Wooley, 521 P.2d 793 (Okl.1974). See generally 2A A. Larson, Workmen's Compensation § 74.32 (1976 and 1979 Supp.). A number of States have required proportional sharing of legal expenses by statute. See, e. g., Idaho Code § 72-223 (1973); Ill.Rev.Stat., ch. 48, § 138.5 (1977); Mich.Comp.Laws Ann. § 418.827 (Supp.1978); N.Y.Work.Comp.Law § 29 (McKinney Supp.1979); Pa.Stat.Ann., Tit. 77, § 671 (Purdon Supp.1979); Va.Code § 65.1-43 (1973); Wash.Rev.Code Ann. § 51.24.010 (Supp.1978). See generally Larson, supra ; Atleson, Workmen's Compensation: Third Party Actions and the Apportionment of Attorney's Fees, 19 Buffalo L.Rev. 515 (1970). That route, of course, remains available to Congress. 1 See J. Boyd, The Law of Compensation for Injuries to Workmen 10 (1913); H. Somers & A. Somers, Workmen's Compensation 26 (1954). 2 See Valentino v. Rickners Rhederei, G. M. B. H., §§ Etha, 552 F.2d 466, 469 (CA2 1977), where the court took notice that "stevedores do not, as a practical matter, pursue these lawsuits presumably for fear of antagonizing their customers."

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445 U.S. 193 100 S.Ct. 1093 63 L.Ed.2d 312 CROWN SIMPSON PULP COMPANY et al.v.Douglas M. COSTLE, Administrator, Environmental Protection Agency. No. 79-797. March 17, 1980. PER CURIAM. 1 Pursuant to § 301 of the Federal Water Pollution Control Act (Act), as added by the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 844, and amended by the Clean Water Act of 1977, 91 Stat. 1582, 33 U.S.C. § 1311 (1976 ed. and Supp. II), the Environmental Protection Agency (EPA)1 promulgates regulations limiting the amount of effluent that can be discharged into navigable waters from a category or class of point sources of pollution. Requirements for particular plants or mills are implemented through National Pollutant Discharge Elimination System (NPDES) permits. EPA issues NPDES permits directly except in those States authorized by EPA to issue permits through their own programs. §§ 402(b), 402(c) of the Act, 33 U.S.C. §§ 1342(b), 1342(c) (1976 ed. and Supp. II). EPA is notified of the actions taken by state permit-issuing authorities and may veto the issuance of any permit by state authorities by objecting in writing within 90 days. § 402(d)(2), 33 U.S.C. § 1342(d)(2) (1976 ed., Supp. II). This case presents the question of whether the EPA's action denying a variance and disapproving effluent restrictions contained in a permit issued by an authorized state agency is directly reviewable in the United States Court of Appeals under § 509(b) of the Act, 86 Stat. 892, 33 U.S.C. § 1369(b).2 2 Petitioners operate bleached kraft pulp-mills which discharge pollutants into the Pacific Ocean near Eureka, Cal. In 1976, they sought NPDES permits from the California Regional Water Resources Board, North Coast Region (Regional Board).3 The Director of EPA's Region IX Enforcement Division objected to the permits proposed by the Regional Board. Petitioners sought direct review of the EPA's action in the Court of Appeals for the Ninth Circuit. 3 Those direct review proceedings were stayed pending action by the California State Water Resources Control Board (State Board). The State Board set aside the orders of the Regional Board and proposed to issue new permits in their stead. App. to Pet. for Cert. It granted petitioners' requests for variances from EPA's effluent limitations4 for Biochemical Oxygen Demand (BOD) and pH, but established alternative effluent limitations for BOD and pH to apply in case EPA disapproved the variances in the proposed permits. EPA denied the requested variances and vetoed the permits to the extent that they exempted petitioners from full compliance with the BOD and pH effluent limitations. Petitioners brought a direct review action in the Ninth Circuit, which was consolidated with the actions which they had individually filed earlier.5 4 The Court of Appeals dismissed the petitions for lack of jurisdiction. 599 F.2d 897 (1979). It concluded that it had no jurisdiction under § 509(b)(1)(E) of the Act, 33 U.S.C. § 1369(b)(1)(E), which provides for review in the courts of appeals of actions "approving or promulgating any effluent limitation or other limitation . . . ." The Court of Appeals found this subsection inapplicable since EPA did not approve or promulgate anything when it rejected a proposed permit. 599 F.2d, at 902. Further, the court found that the subsection applied to effluent limitations affecting categories of point sources rather than to decisions affecting particular plants only. Ibid. 5 The court also found jurisdiction lacking under § 509(b)(1)(F) of the Act, 33 U.S.C. § 1369(b)(1)(F), which provides for review in the courts of appeals of EPA actions "in issuing or denying any permit under [§ 402 of the Act] . . . ."6 The court recognized that in States where EPA itself administers the permit program, this subsection unquestionably provides for direct review in the courts of appeals. 599 F.2d, at 903. However, because California administers its own permit-issuing program, EPA in the present case did no more than veto an NPDES permit proposed by the state authority. The Court of Appeals found that under its decision in Washington v. EPA, 573 F.2d 583 (1978) (Scott Paper), EPA's veto of a state-issued permit did not constitute "issuing or denying" a permit and therefore did not clothe the court with jurisdiction. 6 District Judge Renfrew, sitting by designation, concurred in the majority's analysis of § 509(b)(1)(E), and also agreed that the § 509(b)(1)(F) question was foreclosed by Scott Paper. 599 F.2d, at 905. However, Judge Renfrew, believing that Scott Paper was wrongly decided, urged the Court of Appeals to take the present case en banc in order to consider overruling that decision. He argued that vesting jurisdiction in the courts of appeals under § 509(b)(1)(F) would best comport with the congressional goal of ensuring prompt resolution of challenges to EPA's actions and would recognize that EPA's veto of a state-issued permit is functionally similar to its denial of a permit in States which do not administer an approved permit-issuing program. 7 We agree with the concurring opinion and hold that the Court of Appeals had jurisdiction over this action under § 509(b)(1)(F).7 When EPA, as here, objects to effluent limitations contained in a state-issued permit, the precise effect of its action is to "den[y]" a permit within the meaning of § 509(b)(1)(F). Under the contrary construction of the Court of Appeals, denials of NPDES permits would be reviewable at different levels of the federal-court system depending on the fortuitous circumstance of whether the State in which the case arose was or was not authorized to issue permits.8 Moreover, the additional level of judicial review in those States with permit-issuing authority would likely cause delays in resolving disputes under the Act. Absent a far clearer expression of congressional intent, we are unwilling to read the Act as creating such a seemingly irrational bifurcated system.9 We therefore grant the petition for certiorari, reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. 8 So ordered. 1 We refer to the Administrator of EPA and to the Agency itself as EPA. 2 Section 402 was amended in 1977, after the permits in the present case were vetoed, to give EPA the power, which it did not then have, to issue its own permit if the State fails to meet EPA's objection within a specified time. § 402(d)(4) of the Act, as added, 91 Stat. 1599, 33 U.S.C. § 1342(d)(4) (1976 ed., Supp. II). We do not consider the impact, if any, of this amendment on the jurisdictional issue presented herein. 3 The EPA has authorized the State of California to administer the NPDES program through the State Water Resources Control Board. The Regional Board exercises power delegated by the latter agency. 4 EPA's national effluent limitations for the bleached segment of the American paper industry were substantially upheld in Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 590 F.2d 1011 (1978). 5 The petitions challenging the actions of the Regional Board became moot once the State Board set aside the Regional Board's orders. The only live administrative decision under review at the time of the Court of Appeals' decision would appear to be that of the State Board. 6 State-proposed NPDES permits are issued under authority of § 402(b) of the Act, 33 U.S.C. § 1342(b) (1976 ed. and Supp. II). 7 Because we find that the Court of Appeals had jurisdiction over this action under § 509(b)(1)(F), we do not decide whether it might also have had jurisdiction under § 509(b)(1)(E). 8 Cf. E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 127-128, n. 18, 97 S.Ct. 965, 974-975, 51 L.Ed.2d 204 (1977). 9 Our holding is consistent with the approach taken by the Court of Appeals for the Sixth Circuit, Republic Steel Corp. v. Costle, 581 F.2d 1228, 1230, n. 1 (1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1219, 59 L.Ed.2d 457 (1979); Ford Motor Co. v. EPA, 567 F.2d 661, 668 (1977), and with dicta in the Second and Ninth Circuits, Mianus River Preservation Comm. v. Administrator, EPA, 541 F.2d 899, 909 (CA2 1976); Shell Oil Co. v. Train, 585 F.2d 408, 412 (CA9 1978). The Court of Appeals in the present case relied on decisions holding that the EPA's failure to object to a state-issued permit is not reviewable in the courts of appeals under § 509. Save the Bay, Inc. v. Administrator, EPA, 556 F.2d 1282 (CA5 1977); Mianus River Preservation Comm., supra. However, those cases may be distinguishable because EPA's failure to object, as opposed to its affirmative veto of a state-issued permit, would not necessarily amount to "Administrator's action" within the meaning of § 509(b)(1).

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445 U.S. 308 100 S.Ct. 1156 63 L.Ed.2d 413 Carol VANCE et al., Appellants,v.UNIVERSAL AMUSEMENT CO., INC., et al. No. 78-1588. March 18, 1980. Rehearing Denied May 12, 1980. See 446 U.S. 947, 100 S.Ct. 2177. Lonny F. Zwiener, Austin, Tex., for appellants. Frierson M. Graves, Jr., Memphis, Tenn., for appellees. PER CURIAM. 1 The question presented in this unusual obscenity case is whether the United States Court of Appeals for the Fifth Circuit, 587 F.2d 159, correctly held a Texas public nuisance statute unconstitpeals read the Texas statute as authorizing a prior restraint of indefinite duration on the exhibition of motion pictures without a final judicial determination of obscenity and without any guarantee of prompt review of a preliminary finding of probable obscenity. Cf. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). In this Court, appellants argue that such a restraint is no more serious than that imposed by Texas' criminal statutes and that it is therefore constitutional. We find appellants' argument unpersuasive and affirm the judgment of the Court of Appeals. 2 In 1973, appellee King Arts Theatre, Inc. (hereafter appellee), operated an indoor, adults-only motion picture theater. In October of that year, appellee's landlord gave notice that the theater's lease would be terminated. The notice stated that the County Attorney had informed the landlord that he intended to obtain an injunction to abate the theater as a public nuisance in order to prevent the future showing of allegedly obscene motion pictures. Appellee responded by filing suit in the United States District Court for the Northern District of Texas seeking an injunction and declaratory relief to forestall any action by the County Attorney under the Texas nuisance statutes. The case was transferred to a three-judge District Court sitting in the Southern District of Texas, 404 F.Supp. 33 (1975) for consolidation with a number of other pending obscenity cases. 3 Two different Texas statutes were in issue at that point. The first, Tex.Rev.Civ.Stat.Ann., Art. 4666 (Vernon 1952),1 authorizes injunction suits in the name of the State against alleged nuisances. If successful, "judgment shall be rendered abating said nuisance and enjoining the defendants from maintaining the same, and ordering that said house be closed for one year," unless certain conditions are met. The second nuisance statute, Art. 4667(a), (Vernon Supp.1978), provides that certain habitual uses of premises shall constitute a public nuisance and shall be enjoined at the suit of either the State or any citizen. Among the prohibited uses is "the commercial manufacturing, commercial distribution, or commercial exhibition of obscene material."2 4 The three-judge District Court held that both of these statutes authorize state judges, on the basis of a showing that obscene films have been exhibited in the past, to prohibit the future exhibition of motion pictures that have not yet been found to be obscene. 404 F.Supp. 33 (1975). Recognizing that it is not unusual in nuisance litigation to prohibit future conduct on the basis of a finding of undesirable past or present conduct, the District Court read Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), to require a special analysis when the prohibited future conduct may be protected by the First Amendment.3 The routine abatement procedure, which the District Court characterized as "the heavy hand of the public nuisance statute," was considered constitutionally deficient in the First Amendment context. 5 Specifically, the District Court noted that a general prohibition would operate as a prior restraint on unnamed motion pictures, and that even orders temporarily restraining the exhibition of specific films could be entered ex parte.4 Moreover, such a temporary restraining order could be extended by a temporary injunction based on a showing of probable success on the merits and without a final determination of obscenity.5 The District Court concluded that the nuisance statutes, when coupled with the Texas Rules of Civil Procedure governing injunctions, operate as an invalid prior restraint on the exercise of First Amendment rights. 6 Because the three-judge District Court granted only declaratory and not injunctive relief, the State appealed to the United States Court of Appeals for the Fifth Circuit. See Gerstein v. Coe, 417 U.S. 279, 94 S.Ct. 2246, 41 L.Ed.2d 68 (1974). A divided panel of that court reversed. 559 F.2d 1286 (1977). The panel majority acknowledged that if Art. 4666 authorized the closing of a motion picture theater for all uses for a year, it "would pose serious first amendment questions," 559 F.2d, at 1290, but held that the District Court had misconstrued Art. 4666 in that it was not intended to apply to obscenity cases.6 7 The panel majority disagreed more fundamentally with the District Court's view of Art. 4667(a). It held that the injunction procedure authorized by that statute was "basically sound" in its application to an establishment such as appellee's: 8 "The statute authorizes an injunction against the commercial manufacture, distribution or exhibition of obscene material only. Because the injunction follows, rather than precedes, a judicial determination that obscene material has been shown or distributed or manufactured on the premises and because its prohibitions can apply only to further dealings with obscene and unprotected material, it does not constitute a prior restraint." 559 F.2d, at 1292 (emphasis in original). 9 Further, the panel majority found no problem under Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), because any temporary restraint entered pending a final adjudication on the issue of obscenity would be imposed by a judge, not an administrative censor. The judgment of the District Court was therefore reversed.7 10 The Court of Appeals granted rehearing en banc, and reversed the panel's holding that Art. 4667(a) is constitutional. 587 F.2d 159 (1978).8 The 8-to-6 majority found the statute objectionable because it "would allow the issuance of an injunction against the future exhibition of unnamed films that depict particular acts enumerated in the state's obscenity statute," id., at 168, and "lacks the procedural safeguards required under Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 . . . ." Id., at 169.9 The dissenters wrote that a pragmatic assessment of the statute's operation indicated that once the contemplated injunction was in effect, it would impose no greater a prior restraint than a criminal statute forbidding exhibition of materials deemed obscene under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).10 11 The Texas defendants appealed to this Court, and we noted probable jurisdiction. 442 U.S. 928, 99 S.Ct. 2857, 61 L.Ed.2d 295 (1979). We limit our review to the two arguments advanced in appellants' brief:11 first, that an "obscenity injunction" under Art. 4667(a)(3) constitutes no greater a prior restraint than any criminal statute and, second, that the Court of Appeals erroneously held that no prior restraint of possible First Amendment materials is permissible. 12 * The Court of Appeals was quite correct in concluding both (a) that the regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for the abatement of an ordinary nuisance,12 and (b) that the burden of supporting an injunction against a future exhibition is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication.13 13 As the District Court and the Court of Appeals construed Art. 4667(a), when coupled with the Texas Rules of Civil Procedure, it authorizes prior restraints of indefinite duration on the exhibition of motion pictures that have not been finally adjudicated to be obscene.14 Presumably, an exhibitor would be required to obey such an order pending review of its merits and would be subject to contempt proceedings even if the film is ultimately found to be nonobscene.15 Such prior restraints would be more onerous and more objectionable than the threat of criminal sanctions after a film has been exhibited, since nonobscenity would be a defense to any criminal prosecution. 14 Nor does the fact that the temporary prior restraint is entered by a state trial judge rather than an administrative censor sufficiently distinguish this case from Freedman v. Maryland. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963) (emphasis added). That a state trial judge might be thought more likely than an administrative censor to determine accurately that a work is obscene does not change the unconstitutional character of the restraint if erroneously entered. 15 Accordingly, we agree with the Court of Appeals' conclusion that the absence of any special safeguards governing the entry and review of orders restraining the exhibition of named or unnamed motion pictures, without regard to the context in which they are displayed, precludes the enforcement of these nuisance statutes against motion picture exhibitors. II 16 Contrary to appellants' second argument, the Court of Appeals did not hold that there can never be a valid prior restraint on communicative activity. The Court of Appeals simply held that these Texas statutes were procedurally deficient and that they authorize prior restraints that are more onerous than is permissible under Freedman v. Maryland and Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). 17 Because we find no merit in the contentions advanced on behalf of appellants, the judgment is affirmed. 18 It is so ordered. 19 Mr. CHIEF JUSTICE BURGER, with whom Mr. Justice POWELL joins, dissenting. 20 I would dismiss the appeal for failure to present a real and substantial controversy "of the immediacy which is an indispensable condition of constitutional adjudication." Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961) (plurality opinion). Alternatively, I would abstain from decision until the Texas courts interpret the challenged statute. I would not reach the merits of this "dispute" at this stage. 21 This Court's power of constitutional review is "most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity." Id., at 503, 81 S.Ct., at 1755. This case quite plainly fails to satisfy that rigorous standard. Here, Texas has conceded at oral argument that the injunctive remedy of Art. 4667(a) is not likely to be used by any Texas prosecutor.1 In light of this concession, this case recalls Poe, where Mr. Justice Frankfurter concluded: 22 "The fact that [the State] has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. This Court cannot be umpire to debates concerning harmless, empty shadows." 367 U.S., at 508, 81 S.Ct., at 1758. 23 By passing on the constitutionality of the Texas statute, the Court ignores this wise counsel.2 24 Moreover, the need for constitutional decision could be obviated in this case by permitting the Texas courts an opportunity to interpret Texas law. The Court today assumes (1) that "a temporary injunction of indefinite duration" could be issued against a named motion picture "on the basis of a showing of probable success on the merits," ante, at 316, n. 14; and (2) that an exhibitor would be subject to criminal contempt proceedings for violating such an injunction even if the motion picture is ultimately adjudged nonobscene, ante, at 316, and n. 15. If these assumptions are correct, the statute is obviously flawed. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). But there is ample reason to believe that the Court may be wrong in today's conjectures; indeed, there is a serious question as to whether the Texas statute even authorizes an injunction against a named film. Compare ante, at 312 and dissenting opinion of Mr. Justice WHITE, post, at 325. If such an injunction is permitted, the decision of the Texas Court of Civil Appeals in Locke v. State, 516 S.W.2d 949 (1974), casts doubt on the assumption that it can be obtained on a showing of probable success. There, the Texas court in reviewing the validity of a temporary injunction entered against a motion picture exhibitor made a de novo on-the-merits determination of obscenity.3 Are we really to believe that the trial court applies a less stringent, probable-success standard? At the very least, Locke demonstrates that if an injunction is obtainable on such a slender showing, it is likely to enjoy a short life. It provides stark proof that only by abstaining from decision can we know whether Texas law is as the Court today "forecasts" it to be. See Railroad Comm'n v. Pullman Co., 312 U.S. 496, 499, 61 S.Ct. 643, 644, 85 L.Ed. 971 (1941).4 "So fragile a record is an unsatisfactory basis on which to entertain this action for declaratory relief." Public Affairs Press v. Rickover, 369 U.S. 111, 114, 82 S.Ct. 580, 582, 7 L.Ed.2d 604 (1962). 25 In sum, I am unwilling to join the Court in "umpiring" an empty debate on a question of Texas law on which the Texas courts have not yet had an opportunity to speak. I therefore would dismiss the appeal. 26 Mr. Justice WHITE, with whom Mr. Justice REHNQUIST joins, dissenting. 27 The Court of Appeals invalidated Tex.Rev.Civ.Stat.Ann., Art. 4667(a) (Vernon Supp.1978), for what I understand to be two distinct reasons. Neither is valid, and to the extent that the Court falls into the same error, I respectfully dissent. 28 * The Court of Appeals first characterized Art. 4667(a) as a prior restraint on expression and invalidated it for this reason. I disagree. In my view, Art. 4667(a), standing alone, intrudes no more on First Amendment values than would a criminal statute barring exhibition of obscene films in terms that would be valid under our cases. 29 The Court of Appeals' analysis of Art. 4667(a), and that of this Court as well, glosses over what I take to be a crucial feature of that law. Before an exhibitor can be found to have violated an Art. 4667(a) injunction, there must be two quite separate judicial proceedings. First, the plaintiff must obtain temporary or permanent injunctive relief against the habitual use of the subject premises for the commercial exhibition of obscene motion pictures. Second, the exhibitor must be found in criminal or civil contempt for violating the terms of the injunction. When these separate proceedings are carefully distinguished, it becomes apparent that neither individually nor jointly do they impose an impermissible burden on the exercise of First Amendment freedoms. 30 The initial injunctive proceeding is both substantively and procedurally sound under our precedents. Although the lack of an actual Art. 4667(a) injunction in the present case gives a somewhat abstract and hypothetical tone to the analysis, it seems undisputed that any injunction granted under Art. 4667(a) will be phrased in terms of the Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), definition of obscenity.1 Hence an Art. 4667(a) injunction would not by its terms forbid the exhibition of any materials protected by the First Amendment and would impose no greater functional burden on First Amendment values than would an equivalent—and concededly valid—criminal statute. It simply declares to the exhibitor that the future showing of obscene motion pictures will be punishable.2 It is true that an Art. 4667(a) injunction is issued by a court of law while a criminal statute is imposed by a legislature. Yet this distinction seems irrelevant for First Amendment purposes. 31 Of course, an exhibitor who continues to show arguably obscene motion pictures after an Art. 4667(a) injunction has issued against him does run the risk of being held in contempt. The Court implies that this danger renders Art. 4667(a) unconstitutional because under Walker v. City of Birmingham, 388 U.S. 307, 317-321, 87 S.Ct. 1824, 1830-1832, 18 L.Ed.2d 1210 (1967), an exhibitor could be held in contempt even if the film is ultimately found to be nonobscene. Ante, at 316, and n. 15. This conclusion is plainly wrong. As I have noted, and as the majority does not dispute, an Art. 4667(a) injunction, temporary injunction, or temporary restraining order will be phrased in terms of a constitutionally adequate definition of obscenity. Therefore, contrary to the Court's inference, the motion picture's nonobscenity would clearly defeat any contempt proceeding brought under Art. 4667(a), since if the film were not obscene, there would be no violation of the injunction. 32 There remains the question of whether the procedures employed at a contempt proceeding satisfy First Amendment requirements. I believe that they do. An exhibitor who shows a film arguably violative of the injunction would likely be tried for criminal contempt. At such a proceeding the exhibitor would have the constitutional rights of any criminal defendant. In particular, the State would bear the burden of proving beyond a reasonable doubt that the film which allegedly violated the injunction was obscene.3 Such procedures seem more than adequate to satisfy any procedural requirements that may exist with respect to criminal contempt proceedings in the First Amendment context. 33 The defendant might also be held in civil contempt if he refused to cease showing a specific motion picture proved to be obscene and contrary to the terms of the injunction. A civil contempt proceeding, unlike the original Art. 4667(a) injunction, could result in jailing or fining the exhibitor until he ceased showing a film that had been publicly determined to be obscene. But such procedures would fully satisfy the requirements of our cases. Under Texas law, no one may be held in civil contempt unless he has received notice, in the form of an order to show cause, and a hearing on the charge against him. E.g., Ex parte Mouille, 572 S.W.2d 60, 62 (Tex.Civ.App.1978). The burden of bringing civil contempt charges is on the party seeking to suppress the exhibition; presumably, that party as plaintiff also bears the burden of showing noncompliance with the injunction, and in particular of proving that the exhibitor has shown obscene films. Since contempt proceedings are held before a court, a civil contempt order will not issue until there has been a final judicial determination that the defendant has exhibited and continues to exhibit obscene films. And even then the exhibitor could purge his contempt by ceasing to exhibit such films. 34 The Court of Appeals and the Court, therefore, too easily equate an injunction against the exhibition of unnamed, obscene films with a typical "prior restraint." The Art. 4667(a) injunction does, in a sense, "restrain" future speech by declaring punishable future exhibitions of obscene motion pictures. But in this weak sense of the term criminal obscenity statutes would also be considered "prior restraints." Prior restraints are distinct from, and more dangerous to free speech than, criminal statutes because, through caprice, mistake, or purpose, the censor may forbid speech which is constitutionally protected, and because the speaker may be punished for disobeying the censor even though his speech was protected. Those dangers are entirely absent here. An injunction against the showing of unnamed obscene motion pictures does not and cannot bar the exhibitor from showing protected material, nor can the exhibitor be punished, through contempt proceedings, for showing such material. The Art. 4667(a) injunction, in short, does not impose a traditional prior restraint. On the contrary, it seems to me functionally indistinguishable from a criminal obscenity statute. Since an appropriately worded criminal statute is constitutionally valid, I believe that Art. 4667(a) is valid also. II 35 The second reason given by the Court of Appeals for invalidating Art. 4667(a) and apparently adopted by this Court, was the "failure to provide the safeguards mandated by" Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). Those cases held that injunctions against showing allegedly obscene films are invalid unless (1) the burdens of instituting proceedings and of proving the material is obscene are on the censor; (2) the restraint prior to judicial review continues only for a limited time and only to preserve the status quo; and, (3) there is an assurance of prompt final judicial determination of the films' obscenity. 36 I fail to see, however, how the Freedman restraints are relevant to the injunction contemplated by Art. 4667(a). The Freedman restraints are wholly appropriate with respect to injunctions against specific, named films, but the injunction contemplated by Art. 4667(a) is one directed against the future showing of unnamed obscene motion pictures. Because the films enjoined are unnamed, a final judicial determination of obscenity is logically impossible prior to or at the time the injunction issues. As I have said, an Art. 4667(a) injunction no more restrains the showing of particular films than would a similarly worded criminal statute. 37 The Court of Appeals referred to the Texas Rules of Civil Procedure and declared that injunctions under those Rules could be issued without compliance with Freedman requirements. I would agree that the Texas procedures for enjoining the showing of named films must comply with the First Amendment requirements set out in our cases, but I fail to perceive why the inadequacy of the Texas procedures in this respect invalidates Art. 4667(a), a separate statutory provision, contemplating only injunctions against unnamed films. 38 In this light, striking down Art. 4667(a) is wholly gratuitous, and I respectfully dissent. 1 "Art. 4666. Nuisance; prosecution "Whenever the Attorney General, or the district or county attorney has reliable information that such a nuisance exists, either of them shall file suit in the name of this State in the county where the nuisance is alleged to exist against whoever maintains such nuisance to abate and enjoin the same. If judgment be in favor of the State, then judgment shall be rendered abating said nuisance and enjoining the defendants from maintaining the same, and ordering that said house be closed for one year from the date of said judgment, unless the defendants in said suit, or the owner, tenant or lessee of said property make bond payable to the State at the county seat of the county where such nuisance is alleged to exist, in the penal sum of not less than one thousand nor more than five thousand dollars, with sufficient sureties to be approved by the judge trying the case, conditioned that the acts prohibited in this law shall not be done or permitted to be done in said house. On violation of any condition of such bond, the whole sum may be recovered as a penalty in the name and for the State in the county where such conditions are violated, all such suits to be brought by the district or county attorney of such county." In the early stages of the litigation the parties appear to have assumed that this statute applied to the exhibition of obscene motion pictures; at least the District Court so understood the statute. The Court of Appeals, however, read Art. 4666 as applicable only to the types of nuisance specified in Art. 4664 none of which relates to obscenity. See n. 6, infra. 2 "Art. 4667. Injunctions to abate public nuisances "(a) The habitual use, actual, threatened or contemplated, of any premises, place or building or part thereof, for any of the following uses shall constitute a public nuisance and shall be enjoined at the suit of either the State or any citizen thereof: "(1) For gambling, gambling promotion, or communicating gambling information prohibited by law; "(2) For the promotion or aggravated promotion of prostitution, or compelling prostitution; "(3) For the commercial manufacturing, commercial distribution, or commercial exhibition of obscene material; "(4) For the commercial exhibition of live dances or exhibition which depicts real or simulated sexual intercourse or deviate sexual intercourse; "(5) For the voluntary engaging in a fight between a man and a bull for money or other thing of value, or for any championship, or upon result of which any money or anything of value is bet or wagered, or to see which any admission fee is charged either directly or indirectly, as prohibited by law." 3 "In its defense the state has tried to distinguish the instant case from Near v. Minnesota, supra, but the attempt is not successful. In both cases the state made the mistake of prohibiting future conduct after a finding of undesirable present conduct. When that future conduct may be protected by the first amendment, the whole system must fail because the dividing line between protected and unprotected speech may be 'dim and uncertain.' Bantam Books v. Sullivan, 372 U.S. [58], at 66, 83 S.Ct. 631 [at 639, 9 L.Ed.2d 584 (1963)]. The separation of these forms of speech calls for 'sensitive tools,' Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), not the heavy hand of the public nuisance statute." 404 F.Supp., at 44. 4 In dissent, Mr. Justice WHITE incorrectly assumes that it is "undisputed that any injunction granted under Art. 4667(a) will be phrased in terms of the Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), definition of obscenity." Post, at 321. This is by no means necessarily so. Under the Texas statutes a temporary injunction prohibiting the exhibition of specific named films could be entered on the basis of a showing of probability of success on the merits of the obscenity issue. Even if it were ultimately determined that the film is not obscene, the exhibitor could be punished for contempt of court for showing the film before the obscenity issue was finally resolved. 5 "The specific requirements of obtaining an injunction in Texas, which would presumably be utilized in actions pursuant to article 4667, leave much to be desired if they are used in the obscenity context. Rules 680-693a of the Texas Rules of Civil Procedure provide the injunction procedures for Texas. Pursuant to those rules, the state could obtain a temporary restraining order lasting up to ten days, ex parte. As soon as possible, within that ten days, however, a hearing on a temporary injunction is obtainable. The temporary injunction is not a final adjudication on the merits but, once it is obtained, there is no provision for treating the case any differently from any other civil case. The lack of a provision for a swift final adjudication on the obscenity question raises serious doubts of the constitutional usability of the injunction process in Texas for an obscenity situation." 404 F.Supp., at 46. 6 The panel interpreted the "such a nuisance" language in the first sentence of Art. 4666, see n. 1, supra, as referring to the definition of "common nuisance[s]" in Art. 4664 (Vernon Supp.1978): gambling houses, houses of prostitution, and places where intoxicating liquors are kept. 7 Judge Thornberry, dissenting in part, relied on the reasoning of the three-judge District Court: "As the district court wrote: 'Pursuant to [Rules 680-693a of the Texas Rules of Civil Procedure], the state could obtain a temporary restraining order lasting up to ten days, ex parte. As soon as possible, within that ten days, however, a hearing on a temporary injunction is obtainable. The temporary injunction is not a final adjudication on the merits but, once it is obtained, there is no provision for treating the [obscenity] case any differently from any other civil case. The lack of a provision for a swift final adjudication on the obscenity question raises serious doubts of the constitutional usability of the injunction process in Texas for an obscenity situation.' " 559 F.2d, at 1303. 8 It accepted the panel majority's construction of Art. 4666, i.e., that it was inapplicable in obscenity cases. 9 In Freedman, the Court gave three reasons for holding Maryland's censorship procedures unconstitutional: "It is readily apparent that the Maryland procedural scheme does not satisfy these criteria. First, once the censor disapproves the film, the exhibitor must assume the burden of instituting judicial proceedings and of persuading the courts that the film is protected expression. Second, once the Board has acted against a film, exhibition is prohibited pending judicial review, however protracted. Under the statute, appellant could have been convicted if he had shown the film after unsuccessfully seeking a license, even though no court had ever ruled on the obscenity of the film. Third, it is abundantly clear that the Maryland statute provides no assurance of prompt judicial determination." 380 U.S., at 59-60, 85 S.Ct., at 739. 10 The dissenters also relied on the panel majority's distinction between a temporary restraint entered by a judge and one entered by an administrative censor. 11 The brief is confined to an attack on the Court of Appeals' holding that Art. 4667(a) is unconstitutional as applied to allegedly obscene material. At oral argument, appellants' counsel invited us also to review issues relating to Art. 4666 and the question whether the District Court should have abstained. Since the former contention would require us to review a construction of Art. 4666 which all members of the en banc Court of Appeals ultimately accepted, and since the latter contention was not raised in the Court of Appeals, we decline the invitation. 12 Emphasizing the difference between a regulation touching freedom of expression and the regulation of ordinary commercial activity, in Freedman v. Maryland, the Court wrote: "In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. 'One who might have had a license for the asking may . . . call into question the whole scheme of licensing when he is prosecuted for failure to procure it.' Thornhill v. Alabama, 310 U.S. 88, 97 [60 S.Ct. 736, 742, 84 L.Ed. 1093]; see Staub v. City of Baxley, 355 U.S. 313, 319 [78 S.Ct. 277, 280-281, 2 L.Ed.2d 302]; Saia v. New York, 334 U.S. 558 [68 S.Ct. 1148, 92 L.Ed. 1574]; Thomas v. Collins, 323 U.S. 516 [65 S.Ct. 315, 89 L.Ed. 430]; Hague v. CIO, 307 U.S. 496 [59 S.Ct. 954, 83 L.Ed. 1423]; Lovell v. City of Griffin, 303 U.S. 444, 452-453 [58 S.Ct. 666, 669, 82 L.Ed. 949]. Standing is recognized in such cases because of the '. . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.' NAACP v. Button, 371 U.S. 415, 433 [83 S.Ct. 328, 338, 9 L.Ed.2d 405]; see also Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75-76, 80-81, 96-104 (1960)." 380 U.S., at 56, 85 S.Ct., at 737-738. 13 "Any system of prior restraint, however, 'comes to this Court bearing a heavy presumption against its constitutional validity.' Bantam Books, Inc. v. Sullivan, 372 U.S., at 70 [83 S.Ct., at 639]; New York Times Co. v. United States, 403 U.S. [713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971)]; Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 [91 S.Ct. 1575, 1577, 29 L.Ed.2d 1] (1971); Carroll v. Princess Anne, 393 U.S. 175, 181 [89 S.Ct. 347, 351, 21 L.Ed.2d 325] (1968); Near v. Minnesota ex rel. Olson, 283 U.S. [697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931)]. The presumption against prior restraints is heavier—and the degree of protection broader—than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable. See Speiser v. Randall, 357 U.S. 513 [78 S.Ct. 1332, 2 L.Ed.2d 1460] (1958)." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-559, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975). 14 Those courts believed that a short-lived temporary restraining order could be issued on the basis of an ex parte showing, and that a temporary injunction of indefinite duration could be obtained on the basis of a showing of probable success on the merits. We accept their construction of Texas law for purposes of decision. See Bernhardt v. Polygraphic Co., 350 U.S. 198, 204-205, 76 S.Ct. 273, 276-277, 100 L.Ed. 199 (1956). 15 Cf. Walker v. City of Birmingham, 388 U.S. 307, 317-321, 87 S.Ct. 1824, 1830-1832, 18 L.Ed.2d 1210 (1967); United States v. Mine Workers, 330 U.S. 258, 293, 67 S.Ct. 677, 695, 91 L.Ed. 884 (1947). 1 "QUESTION: Well, what does it—why, then, do you need [this statute], if it is the equivalent of the Texas criminal law? "MR. ZWEINER: I am not sure that we do, to be frank; but— "QUESTION: What does it add to the criminal law. It changes the burden of proof, it deprives a person of a jury trial. "MR. ZWEINER: I don't think it adds anything. As a matter of fact I think it is a cumbersome process and I don't know that the prosecutor after more than two rounds will ever use it again. . . ." Tr. of Oral Arg. 36-37. 2 It is true that the State was the appellee in Poe and that it is the appellant here. This difference, however, should not be controlling for purposes of determining whether the dispute is a real one. Here, the challenged statute was defended in perfunctory fashion, apparently more out of a sense of duty than anything else. The State filed a nine-page brief with only three pages devoted to analysis; it derided the injunctive remedy as "cumbersom[e] and ineffectua[l]." Brief for Appellants 6. 3 In Locke, the Texas court wrote as follows: "In accordance with the requirement that an independent determination of the obscene nature of the material is made by the reviewing court, we have viewed the films introduced as exhibits below, and we find them to be obscene by any reasonable definition. The films have practically no plot or story content. . . . Their appeal is wholly to the prurient interest in sexual conduct. They are obscene according to both the Texas statutory definition and the test approved by the United States Supreme Court in Miller v. California [93 S.Ct. 2607, 37 L.Ed.2d 419]" 516 S.W.2d, at 954. 4 Equally dubious is the Court's second assumption that an exhibitor could be punished for disobeying a temporary injunction even if the motion picture shown is ultimately found nonobscene. It is an open question whether Texas in these circumstances would apply a rule analogous to that invoked in Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), to bar a defendant from raising a First Amendment defense in an action for contempt. 1 The en banc Fifth Circuit and the District Court both found that the term "obscene" in Art. 4667(a) would be defined with reference to Tex.Penal Code Ann. § 43.21 (Supp.1979). 587 F.2d 159, 168, and n. 18 (1978); 404 F.Supp. 33, 39 (1975). See also Locke v. State, 516 S.W.2d 949, 952 (Tex.Civ.App. 1974). Section 43.21, in turn, tracks nearly verbatim the Miller guidelines. The Fifth Circuit panel, in an aspect of its decision that was not repudiated by the Circuit en banc, held: "The statute authorizes an injunction against the commercial manufacture, distribution or exhibition of obscene material only. . . . Were a Texas court to issue an overbroad injunction restricting nonobscene (and therefore protected) matter, it would exceed both its constitutional and its statutory authority." 559 F.2d 1286, 1292 (1977) (emphasis in original). I do not read today's decision as disputing that under Texas law a valid Art. 4667(a) injunction will be phrased in terms of a constitutionally adequate definition of obscenity. 2 Indeed, the Art. 4667(a) procedure provides greater protection to speech than would an equivalent criminal statute, since no one is punishable for violating an Art. 4667(a) injunction unless a plaintiff has already gone to the considerable trouble of first obtaining a public nuisance injunction against the defendant. 3 The Fifth Circuit majority expressed some doubt as to whether the State will have the burden of proof of showing that the film is obscene. 587 F.2d, at 171, n.23, citing Railroad Comm'n v. Sample, 405 S.W.2d 338, 343 (Tex.1966). The Sample case was a challenge to an order of the State Railroad Commission, not a contempt proceeding; it stands at most for the proposition that in Texas an order to show cause does not conclusively establish which party bears the burden of proof. The case does not establish that a party receiving an order to show cause why he should not be held in criminal contempt bears the burden of proof on any element of the contempt. To the contrary, obscenity is one element of the injunction, and if the State has the burden of showing violation of the injunction beyond a reasonable doubt, it follows that the State as a matter of due process has the burden of showing that the particular film shown was obscene.

23

445 U.S. 222 100 S.Ct. 1108 63 L.Ed.2d 348 Vincent F. CHIARELLA, Petitioner,v.UNITED STATES. No. 78-1202. Argued Nov. 5, 1979. Decided March 18, 1980. Syllabus Section 10(b) of the Securities Exchange Act of 1934 prohibits the use "in connection with the purchase or sale of any security . . . [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe." Rule 10b-5 of the Securities and Exchange Commission (SEC), promulgated under § 10(b), makes it unlawful for any person to "employ any device, scheme, or artifice to defraud," or to "engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." Petitioner, who was employed by a financial printer that had been engaged by certain corporations to print corporate takeover bids, deduced the names of the target companies from information contained in documents delivered to the printer by the acquiring companies and, without disclosing his knowledge, purchased stock in the target companies and sold the shares immediately after the takeover attempts were made public. After the SEC began an investigation of his trading activities, petitioner entered into a consent decree with the SEC in which he agreed to return his profits to the sellers of the shares. Thereafter, petitioner was indicted and convicted for violating § 10(b) of the Act and SEC Rule 10b-5. The District Court's charge permitted the jury to convict the petitioner if it found that he willfully failed to inform sellers of target company securities that he knew of a forthcoming takeover bid that would make their shares more valuable. Petitioner's conviction was affirmed by the Court of Appeals. Held: Petitioner's conduct did not constitute a violation of § 10(b), and hence his conviction was improper. Pp. 225-237. (a) Administrative and judicial interpretations have established that silence in connection with the purchase or sale of securities may operate as a fraud actionable under § 10(b) despite the absence of statutory language or legislative history specifically addressing the legality of nondisclosure. However, such liability is premised upon a duty to disclose (such as that of a corporate insider to shareholders of his corporation) arising from a relationship of trust and confidence between parties to a transaction. Pp. 225-230. (b) Here, petitioner had no affirmative duty to disclose the information as to the plans of the acquiring companies. He was not a corporate insider, and he received no confidential information from the target companies. Nor could any duty arise from petitioner's relationship with the sellers of the target companies' securities, for he had no prior dealings with them, was not their agent, was not a fiduciary, and was not a person in whom the sellers had placed their trust and confidence. A duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information. Pp. 231-235. (c) This Court need not decide whether petitioner's conviction can be supported on the alternative theory that he breached a duty to the acquiring corporation, since such theory was not submitted to the jury. The jury instructions demonstrate that petitioner was convicted merely because of his failure to disclose material, nonpublic information to sellers from whom he bought the stock of target corporations. The conviction cannot be affirmed on the basis of a theory not presented to the jury. Pp. 235-237. 588 F.2d 1358, reversed. Stanley S. Arkin, New York City, for petitioner. Stephen M. Shapiro, Washington, D. C., for respondent. Mr. Justice POWELL delivered the opinion of the Court. 1 The question in this case is whether a person who learns from the confidential documents of one corporation that it is planning an attempt to secure control of a second corporation violates § 10(b) of the Securities Exchange Act of 1934 if he fails to disclose the impending takeover before trading in the target company's securities. 2 * Petitioner is a printer by trade. In 1975 and 1976, he worked as a "markup man" in the New York composing room of Pandick Press, a financial printer. Among documents that petitioner handled were five announcements of corporate takeover bids. When these documents were delivered to the printer, the identities of the acquiring and target corporations were concealed by blank spaces or false names. The true names were sent to the printer on the night of the final printing. 3 The petitioner, however, was able to deduce the names of the target companies before the final printing from other information contained in the documents. Without disclosing his knowledge, petitioner purchased stock in the target companies and sold the shares immediately after the takeover attempts were made public.1 By this method, petitioner realized a gain of slightly more than $30,000 in the course of 14 months. Subsequently, the Securities and Exchange Commission (Commission or SEC) began an investigation of his trading activities. In May 1977, petitioner entered into a consent decree with the Commission in which he agreed to return his profits to the sellers of the shares.2 On the same day, he was discharged by Pandick Press. 4 In January 1978, petitioner was indicted on 17 counts of violating § 10(b) of the Securities Exchange Act of 1934 (1934 Act) and SEC Rule 10b-5.3 After petitioner unsuccessfully moved to dismiss the indictment,4 he was brought to trial and convicted on all counts. 5 The Court of Appeals for the Second Circuit affirmed petitioner's conviction. 588 F.2d 1358 (1978). We granted certiorari, 441 U.S. 942, 99 S.Ct. 2158, 60 L.Ed.2d 1043 (1979), and we now reverse. II 6 Section 10(b) of the 1934 Act, 48 Stat. 891, 15 U.S.C. § 78j, prohibits the use "in connection with the purchase or sale of any security . . . [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe." Pursuant to this section, the SEC promulgated Rule 10b-5 which provides in pertinent part:5 7 "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, "(a) To employ any device, scheme, or artifice to defraud, [or] 8 * * * * * 9 "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." 17 CFR § 240.10b-5 (1979). 10 This case concerns the legal effect of the petitioner's silence. The District Court's charge permitted the jury to convict the petitioner if it found that he willfully failed to inform sellers of target company securities that he knew of a forthcoming takeover bid that would make their shares more valuable.6 In order to decide whether silence in such circumstances violates § 10(b), it is necessary to review the language and legislative history of that statute as well as its interpretation by the Commission and the federal courts. 11 Although the starting point of our inquiry is the language of the statute, Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976), § 10(b) does not state whether silence may constitute a manipulative or deceptive device. Section 10(b) was designed as a catch-all clause to prevent fraudulent practices. 425 U.S., at 202, 206. But neither the legislative history nor the statute itself affords specific guidance for the resolution of this case. When Rule 10b-5 was promulgated in 1942, the SEC did not discuss the possibility that failure to provide information might run afoul of § 10(b).7 12 The SEC took an important step in the development of § 10(b) when it held that a broker-dealer and his firm violated that section by selling securities on the basis of undisclosed information obtained from a director of the issuer corporation who was also a registered representative of the brokerage firm. In Cady, Roberts & Co., 40 S.E.C. 907 (1961), the Commission decided that a corporate insider must abstain from trading in the shares of his corporation unless he has first disclosed all material inside information known to him. The obligation to disclose or abstain derives from 13 "[a]n affirmative duty to disclose material information[, which] has been traditionally imposed on corporate 'insiders,' particular officers, directors, or controlling stockholders. We, and the courts have consistently held that insiders must disclose material facts which are known to them by virtue of their position but which are not known to persons with whom they deal and which, if known, would affect their investment judgment." Id., at 911. 14 The Commission emphasized that the duty arose from (i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information by trading without disclosure. Id., at 912, and n. 15.8 15 That the relationship between a corporate insider and the stockholders of his corporation gives rise to a disclosure obligation is not a novel twist of the law. At common law, misrepresentation made for the purpose of inducing reliance upon the false statement is fraudulent. But one who fails to disclose material information prior to the consummation of a transaction commits fraud only when he is under a duty to do so. And the duty to disclose arises when one party has information "that the other [party] is entitled to know because of a fiduciary or other similar relation of trust and confidence between them."9 In its Cady, Roberts decision, the Commission recognized a relationship of trust and confidence between the shareholders of a corporation and those insiders who have obtained confidential information by reason of their position with that corporation.10 This relationship gives rise to a duty to disclose because of the "necessity of preventing a corporate insider from . . . tak[ing] unfair advantage of the uninformed minority stockholders." Speed v. Transamerica Corp., 99 F.Supp. 808, 829 (D.Del.1951). 16 The federal courts have found violations of § 10(b) where corporate insiders used undisclosed information for their own benefit. E. g., SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (CA2 1968), cert. denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558 (1971). The cases also have emphasized, in accordance with the common-law rule, that "[t]he party charged with failing to disclose market information must be under a duty to disclose it." Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275, 282 (CA2 1975). Accordingly, a purchaser of stock who has no duty to a prospective seller because he is neither an insider nor a fiduciary has been held to have no obligation to reveal material facts. See General Time Corp. v. Talley Industries, Inc., 403 F.2d 159, 164 (CA2 1968), cert. denied, 393 U.S. 1026, 89 S.Ct. 631, 21 L.Ed.2d 570 (1969).11 17 This Court followed the same approach in Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). A group of American Indians formed a corporation to manage joint assets derived from tribal holdings. The corporation issued stock to its Indian shareholders and designated a local bank as its transfer agent. Because of the speculative nature of the corporate assets and the difficulty of ascertaining the true value of a share, the corporation requested the bank to stress to its stockholders the importance of retaining the stock. Id., at 146, 92 S.Ct., at 1468. Two of the bank's assistant managers aided the shareholders in disposing of stock which the managers knew was traded in two separate markets—a primary market of Indians selling to non-Indians through the bank and a resale market consisting entirely of non-Indians. Indian sellers charged that the assistant managers had violated § 10(b) and Rule 10b-5 by failing to inform them of the higher prices prevailing in the resale market. The Court recognized that no duty of disclosure would exist if the bank merely had acted as a transfer agent. But the bank also had assumed a duty to act on behalf of the shareholders, and the Indian sellers had relied upon its personnel when they sold their stock. 406 U.S., at 152, 92 S.Ct., at 1471. Because these officers of the bank were charged with a responsibility to the shareholders, they could not act as market makers inducing the Indians to sell their stock without disclosing the existence of the more favorable non-Indian market. Id., at 152-153, 92 S.Ct., at 1471-1472. 18 Thus, administrative and judicial interpretations have established that silence in connection with the purchase or sale of securities may operate as a fraud actionable under § 10(b) despite the absence of statutory language or legislative history specifically addressing the legality of nondisclosure. But such liability is premised upon a duty to disclose arising from a relationship of trust and confidence between parties to a transaction. Application of a duty to disclose prior to trading guarantees that corporate insiders, who have an obligation to place the shareholder's welfare before their own, will not benefit personally through fraudulent use of material, nonpublic information.12 III 19 In this case, the petitioner was convicted of violating § 10(b) although he was not a corporate insider and he received no confidential information from the target company. Moreover, the "market information" upon which he relied did not concern the earning power or operations of the target company, but only the plans of the acquiring company.13 Petitioner's use of that information was not a fraud under § 10(b) unless he was subject to an affirmative duty to disclose it before trading. In this case, the jury instructions failed to specify any such duty. In effect, the trial court instructed the jury that petitioner owed a duty to everyone; to all sellers, indeed, to the market as a whole. The jury simply was told to decide whether petitioner used material, nonpublic information at a time when "he knew other people trading in the securities market did not have access to the same information." Record 677. 20 The Court of Appeals affirmed the conviction by holding that "[a]nyone —corporate insider or not—who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose." 588 F.2d, at 1365 (emphasis in original). Although the court said that its test would include only persons who regularly receive material, nonpublic information, id., at 1366, its rationale for that limitation is unrelated to the existence of a duty to disclose.14 The Court of Appeals, like the trial court, failed to identify a relationship between petitioner and the sellers that could give rise to a duty. Its decision thus rested solely upon its belief that the federal securities laws have "created a system providing equal access to information necessary for reasoned and intelligent investment decisions." Id., at 1362. The use by anyone of material information not generally available is fraudulent, this theory suggests, because such information gives certain buyers or sellers an unfair advantage over less informed buyers and sellers. 21 This reasoning suffers from two defects. First not every instance of financial unfairness constitutes fraudulent activity under § 10(b). See Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 474-477, 97 S.Ct. 1292, 1301-1303, 51 L.Ed.2d 480 (1977). Second, the element required to make silence fraudulent—a duty to disclose—is absent in this case. No duty could arise from petitioner's relationship with the sellers of the target company's securities, for petitioner had no prior dealings with them. He was not their agent, he was not a fiduciary, he was not a person in whom the sellers had placed their trust and confidence. He was, in fact, a complete stranger who dealt with the sellers only through impersonal market transactions. 22 We cannot affirm petitioner's conviction without recognizing a general duty between all participants in market transactions to forgo actions based on material, nonpublic information. Formulation of such a broad duty, which departs radically from the established doctrine that duty arises from a specific relationship between two parties, see n. 9, supra, should not be undertaken absent some explicit evidence of congressional intent. 23 As we have seen, no such evidence emerges from the language or legislative history of § 10(b). Moreover, neither the Congress nor the Commission ever has adopted a parity-of-information rule. Instead the problems caused by misuse of market information have been addressed by detailed and sophisticated regulation that recognizes when use of market information may not harm operation of the securities markets. For example, the Williams Act15 limits but does not completely prohibit a tender offeror's purchases of target corporation stock before public announcement of the offer. Congress' careful action in this and other areas16 contrasts, and is in some tension, with the broad rule of liability we are asked to adopt in this case. 24 Indeed, the theory upon which the petitioner was convicted is at odds with the Commission's view of § 10(b) as applied to activity that has the same effect on sellers as the petitioner's purchases. "Warehousing" takes place when a corporation gives advance notice of its intention to launch a tender offer to institutional investors who then are able to purchase stock in the target company before the tender offer is made public and the price of shares rises.17 In this case, as in warehousing, a buyer of securities purchases stock in a target corporation on the basis of market information which is unknown to the seller. In both of these situations, the seller's behavior presumably would be altered if he had the nonpublic information. Significantly, however, the Commission has acted to bar warehousing under its authority to regulate tender offers18 after recognizing that action under § 10(b) would rest on a "somewhat different theory" than that previously used to regulate insider trading as fraudulent activity.19 25 We see no basis for applying such a new and different theory of liability in this case. As we have emphasized before, the 1934 Act cannot be read " 'more broadly than its language and the statutory scheme reasonably permit.' " Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S.Ct. 2479, 2490, 61 L.Ed.2d 82 (1979), quoting SEC v. Sloan, 436 U.S. 103, 116, 98 S.Ct. 1702, 1711, 56 L.Ed.2d 148 (1978). Section 10(b) is aptly described as a catchall provision, but what it catches must be fraud. When an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak. We hold that a duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information. The contrary result is without support in the legislative history of § 10(b) and would be inconsistent with the careful plan that Congress has enacted for regulation of the securities markets. Cf. Santa Fe Industries, Inc. v. Green, 430 U.S., at 479, 97 S.Ct., at 1304.20 IV 26 In its brief to this Court, the United States offers an alternative theory to support petitioner's conviction. It argues that petitioner breached a duty to the acquiring corporation when he acted upon information that he obtained by virtue of his position as an employee of a printer employed by the corporation. The breach of this duty is said to support a conviction under § 10(b) for fraud perpetrated upon both the acquiring corporation and the sellers. 27 We need not decide whether this theory has merit for it was not submitted to the jury. The jury was told, in the language of Rule 10b-5, that it could convict the petitioner if it concluded that he either (i) employed a device, scheme, or artifice to defraud or (ii) engaged in an act, practice, or course of business which operated or would operate as a fraud or deceit upon any person. Record 681. The trial judge stated that a "scheme to defraud" is a plan to obtain money by trick or deceit and that "a failure by Chiarella to disclose material, non-public information in connection with his purchase of stock would constitute deceit." Id., at 683. Accordingly, the jury was instructed that the petitioner employed a scheme to defraud if he "did not disclose . . . material non-public information in connection with the purchases of the stock." Id., at 685-686. 28 Alternatively, the jury was instructed that it could convict if "Chiarella's alleged conduct of having purchased securities without disclosing material, nonpublic information would have or did have the effect of operating as a fraud upon a seller." Id., at 686. The judge earlier had stated that fraud "embraces all the means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false misrepresentation, suggestions or by suppression of the truth." Id., at 683. 29 The jury instructions demonstrate that petitioner was convicted merely because of his failure to disclose material, nonpublic information to sellers from whom he bought the stock of target corporations. The jury was not instructed on the nature or elements of a duty owed by petitioner to anyone other than the sellers. Because we cannot affirm a criminal conviction on the basis of a theory not presented to the jury, Rewis v. United States, 401 U.S. 808, 814, 91 S.Ct. 1056, 1060, 28 L.Ed.2d 493 (1971), see Dunn v. United States, 442U.S. 100, 106, 99 S.Ct. 2190, 2194, 60 L.Ed.2d 743 (1979), we will not speculate upon whether such a duty exists, whether it has been breached, or whether such a breach constitutes a violation of § 10(b).21 The judgment of the Court of Appeals is 30 Reversed. 31 Mr. Justice STEVENS, concurring. 32 Before liability, civil or criminal, may be imposed for a Rule 10b-5 violation, it is necessary to identify the duty that the defendant has breached. Arguably, when petitioner bought securities in the open market, he violated (a) a duty to disclose owed to the sellers from whom he purchased target company stock and (b) a duty of silence owed to the acquiring companies. I agree with the Court's determination that petitioner owed no duty of disclosure to the sellers, that his conviction rested on the erroneous premise that he did owe them such a duty, and that the judgment of the Court of Appeals must therefore be reversed. 33 The Court correctly does not address the second question: whether the petitioner's breach of his duty of silence—a duty he unquestionably owed to his employer and to his employer's customers—could give rise to criminal liability under Rule 10b-5. Respectable arguments could be made in support of either position. On the one hand, if we assume that petitioner breached a duty to the acquiring companies that had entrusted confidential information to his employers, a legitimate argument could be made that his actions constituted "a fraud or a deceit" upon those companies "in connection with the purchase or sale of any security."* On the other hand, inasmuch as those companies would not be able to recover damages from petitioner for violating Rule 10b-5 because they were neither purchasers nor sellers of target company securities, see Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539, it could also be argued that no actionable violation of Rule 10b-5 had occurred. I think the Court wisely leaves the resolution of this issue for another day. 34 I write simply to emphasize the fact that we have not necessarily placed any stamp of approval on what this petitioner did, nor have we held that similar actions must be considered lawful in the future. Rather, we have merely held that petitioner's criminal conviction cannot rest on the theory that he breached a duty he did not owe. 35 I join the Court's opinion. 36 Mr. Justice BRENNAN, concurring in the judgment. 37 The Court holds, correctly in my view, that "a duty to disclose under § 10(b) does not arise from the mere possession, 445 U.S. 239 of nonpublic market information." Ante, at 235. Prior to so holding, however, it suggests that no violation of § 10(b) could be made out absent a breach of some duty arising out of a fiduciary relationship between buyer and seller. I cannot subscribe to that suggestion. On the contrary, it seems to me that Part I of THE CHIEF JUSTICE'S dissent, post, at 239-243, correctly states the applicable substantive law—a person violates § 10(b) whenever he improperly obtains or converts to his own benefit nonpublic information which he then uses in connection with the purchase or sale of securities. 38 While I agree with Part I of THE CHIEF JUSTICE'S dissent, I am unable to agree with Part II. Rather, I concur in the judgment of the majority because I think it clear that the legal theory sketched by THE CHIEF JUSTICE is not the one presented to the jury. As I read them, the instructions in effect permitted the jurors to return a verdict of guilty merely upon a finding of failure to disclose material, nonpublic information in connection with the purchase of stock. I can find no instruction suggesting that one element of the offense was the improper conversion or misappropriation of that nonpublic information. Ambiguous suggestions in the indictment and the prosecutor's opening and closing remarks are no substitute for the proper instructions. And neither reference to the harmless-error doctrine nor some post hoc theory of constructive stipulation can cure the defect. The simple fact is that to affirm the conviction without an adequate instruction would be tantamount to directing a verdict of guilty, and that we plainly may not do. 39 Mr. Chief Justice BURGER, dissenting. 40 I believe that the jury instructions in this case properly charged a violation of § 10(b) and Rule 10b-5, and I would affirm the conviction. 41 * As a general rule, neither party to an arm's-length business transaction has an obligation to disclose information to the other unless the parties stand in some confidential or fiduciary relation. See W. Prosser, Law of Torts § 106 (2d ed. 1955). This rule permits a businessman to capitalize on his experience and skill in securing and evaluating relevant information; it provides incentive for hard work, careful analysis, and astute forecasting. But the policies that underlie the rule also should limit its scope. In particular, the rule should give way when an informational advantage is obtained, not by superior experience, foresight, or industry, but by some unlawful means. One commentator has written: 42 "[T]he way in which the buyer acquires the information which he conceals from the vendor should be a material circumstance. The information might have been acquired as the result of his bringing to bear a superior knowledge, intelligence, skill or technical judgment; it might have been acquired by mere chance; or it might have been acquired by means of some tortious action on his part. . . . Any time information is acquired by mere an illegal act it would seem that there should be a duty to disclose that information." Keeton, Fraud—Concealment and Non-Disclosure, 15 Texas L.Rev. 1, 25-26 (1936) (emphasis added). 43 I would read § 10(b) and Rule 10b-5 to encompass and build on this principle: to mean that a person who has misappropriated nonpublic information has an absolute duty to disclose that information or to refrain from trading. 44 The language of § 10(b) and of Rule 10b-5 plainly supports such a reading. By their terms, these provisions reach any person engaged in any fraudulent scheme. This broad language negates the suggestion that congressional concern was limited to trading by "corporate insiders" or to deceptive practices related to "corporate information."1 Just as surely Congress cannot have intended one standard of fair dealing for "white collar" insiders and another for the "blue collar" level. The very language of § 10(b) and Rule 10b-5 "by repeated use of the word 'any' [was] obviously meant to be inclusive." Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 1471, 31 L.Ed.2d 741 (1972). 45 The history of the statute and of the Rule also supports this reading. The antifraud provisions were designed in large measure "to assure that dealing in securities is fair and without undue preferences or advantages among investors." H.R.Conf.Rep.No.94-229, p. 91 (1975), U.S.Code Cong. & Admin.News 1975, p. 323. These provisions prohibit "those manipulative and deceptive practices which have been demonstrated to fulfill no useful function." S.Rep.No.792, 73d Cong., 2d Sess., 6 (1934). An investor who purchases securities on the basis of misappropriated nonpublic information possesses just such an "undue" trading advantage; his conduct quite clearly serves no useful function except his own enrichment at the expense of others. 46 This interpretation of § 10(b) and Rule 10b-5 is in no sense novel. It follows naturally from legal principles enunciated by the Securities and Exchange Commission in its seminal Cady, Roberts decision. 40 S.E.C. 907 (1961). There, the Commission relied upon two factors to impose a duty to disclose on corporate insiders: (1) " . . . access . . . to information intended to be available only for a corporate purpose and not for the personal benefit of anyone " (emphasis added); and (2) the unfairness inherent in trading on such information when it is inaccessible to those with whom one is dealing. Both of these factors are present whenever a party gains an informational advantage by unlawful means.2 Indeed, in In re Blyth & Co., 43 S.E.C. 1037 (1969), the Commission applied its Cady, Roberts decision in just such a context. In that case a broker-dealer had traded in Government securities on the basis of confidential Treasury Department information which it received from a Federal Reserve Bank employee. The Commission ruled that the trading was "improper use of inside information," violative of § 10(b) and Rule 10b-5. 43 S.E.C., at 1040. It did not hesitate to extend Cady, Roberts to reach a "tippee" of a Government insider.3 47 Finally, it bears emphasis that this reading of § 10(b) and Rule 10b-5 would not threaten legitimate business practices. So read, the antifraud provisions would not impose a duty on a tender offeror to disclose its acquisition plans during the period in which it "tests the water" prior to purchasing a full 5% of the target company's stock. Nor would it proscribe "warehousing." See generally SEC, Institutional Investor Study Report, H.R.Doc.No. 92-64, pt. 4, p. 2273 (1971). Likewise, market specialist would not be subject to a disclose-or-refrain requirement in the performance of their everyday market functions. In each of these instances, trading is accomplished on the basis of material, nonpublic information, but the information has not been unlawfully converted for personal gain. II 48 The Court's opinion, as I read it, leaves open the question whether § 10(b) and Rule 10b-5 prohibit trading on misappropriated nonpublic information.4 Instead, the Court apparently concludes that this theory of the case was not submitted to the jury. In the Court's view, the instructions given the jury were premised on the erroneous notion that the mere failure to disclose nonpublic information, however acquired, is a deceptive practice. And because of this premise, the jury was not instructed that the means by which Chiarella acquired his informational advantage—by violating a duty owed to the acquiring companies—was an element of the offense. See ante, at 236. 49 The Court's reading of the District Court's charge is unduly restrictive. Fairly read as a whole and in the context of the trial, the instructions required the jury to find that Chiarella obtained his trading advantage by misappropriating the property of his employer's customers. The jury was charged that "[i]n simple terms, the charge is that Chiarella wrongfully took advantage of information he acquired in the course of his confidential position at Pandick Press and secretly used that information when he knew other people trading in the securities market did not have access to the same information that he had at a time when he knew that that information was material to the value of the stock." Record 677 (emphasis added). The language parallels that in the indictment, and the jury had that indictment during its deliberations; it charged that Chiarella had traded "without disclosing the material nonpublic information he had obtained in connection with his employment." It is underscored by the clarity which the prosecutor exhibited in his opening statement to the jury. No juror could possibly have failed to understand what the case was about after the prosecutor said: "In sum what the indictment charges is that Chiarella misused material non-public information for personal gain and that he took unfair advantage of his position of trust with the full knowledge that it was wrong to do so. That is what the case is about. It is that simple." Id., at 46. Moreover, experienced defense counsel took no exception and uttered no complaint that the instructions were inadequate in this regard. 50 In any event, even assuming the instructions were deficient in not charging misappropriation with sufficient precision, on this record any error was harmless beyond a reasonable doubt. Here, Chiarella, himself, testified that he obtained his informational advantage by decoding confidential material entrusted to his employer by its customers. Id., at 474-475. He admitted that the information he traded on was "confidential," not "to be use[d] . . . for personal gain." Id., at 496. In light of this testimony, it is simply inconceivable to me that any shortcoming in the instructions could have "possibly influenced the jury adversely to [the defendant]." Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See also United States v. Park, 421 U.S. 658, 673-676, 95 S.Ct. 1903, 1912-1914, 44 L.Ed.2d 489 (1975). Even more telling perhaps is Chiarella's counsel's statement in closing argument: 51 "Let me say right up front, too, Mr. Chiarella got on the stand and he conceded, he said candidly, 'I used clues I got while I was at work. I looked at these various documents and I deciphered them and I decoded them and I used that information as a basis for purchasing stock.' There is no question about that. We don't have to go through a hullabaloo about that. It is something he concedes. There is no mystery about that." Record 621. 52 In this Court, counsel similarly conceded that "[w]e do not dispute the proposition that Chiarella violated his duty as an agent of the offeror corporations not to use their confidential information for personal profit." Reply Brief for Petitioner 4 (emphasis added). See Restatement (Second) of Agency § 395 (1958). These statements are tantamount to a formal stipulation that Chiarella's informational advantage was unlawfully obtained. And it is established law that a stipulation related to an essential element of a crime must be regarded by the jury as a fact conclusively proved. See 8 J. Wigmore, Evidence § 2590 (McNaughton rev. 1961); United States v. Houston, 547 F.2d 104 (CA9 1976). 53 In sum, the evidence shows beyond all doubt that Chiarella, working literally in the shadows of the warning signs in the printshop misappropriated—stole to put it bluntly—valuable nonpublic information entrusted to him in the utmost confidence. He then exploited his ill-gotten informational advantage by purchasing securities in the market. In my view, such conduct plainly violates § 10(b) and Rule 10b-5. Accordingly, I would affirm the judgment of the Court of Appeals. 54 Mr. Justice BLACKMUN, with whom Mr. Justice MARSHALL joins, dissenting. 55 Although I agree with much of what is said in Part I of the dissenting opinion of THE CHIEF JUSTICE, ante, p. 239, I write separately because, in my view, it is unnecessary to rest petitioner's conviction on a "misappropriation" theory. The fact that petitioner Chiarella purloined, or, to use THE CHIEF JUSTICE's word, ante, at 245, "stole," information concerning pending tender offers certainly is the most dramatic evidence that petitioner was guilty of fraud. He has conceded that he knew it was wrong, and he and his co-workers in the printshop were specifically warned by their employer that actions of this kind were improper and forbidden. But I also would find petitioner's conduct fraudulent within the meaning of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and the Securities and Exchange Commission's Rule 10b-5, 17 CFR § 240.10b-5 (1979), even if he had obtained the blessing of his employer's principals before embarking on his profiteering scheme. Indeed, I think petitioner's brand of manipulative trading, with or without such approval, lies close to the heart of what the securities laws are intended to prohibit. 56 The Court continues to pursue a course, charted in certain recent decisions, designed to transform § 10(b) from an intentionally elastic "catchall" provision to one that catches relatively little of the misbehavior that all too often makes investment in securities a needlessly risky business for the uninitiated investor. See, e. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). Such confinement in this case is now achieved by imposition of a requirement of a "special relationship" akin to fiduciary duty before the statute gives rise to a duty to disclose or to abstain from trading upon material, nonpublic information.1 The Court admits that this conclusion finds no mandate in the language of the statute or its legislative history. Ante, at 226. Yet the Court fails even to attempt a justification of its ruling in terms of the purposes of the securities laws, or to square that ruling with the long-standing but now much abused principle that the federal securities laws are to be construed flexibly rather than with narrow technicality. See Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 1471, 31 L.Ed.2d 741 (1972); Superintendent of Insurance v. Bankers Life & Casualty Co., 404 U.S. 6, 12, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (1971); SEC v. Capital Gains Research Bureau, 375 U.S. 180, 186, 84 S.Ct. 275, 280, 11 L.Ed.2d 237 (1963). 57 I, of course, agree with the Court that a relationship of trust can establish a duty to disclose under § 10(b) and Rule 10b-5. But I do not agree that a failure to disclose violates the Rule only when the responsibilities of a relationship of that kind have been breached. As applied to this case, the Court's approach unduly minimizes the importance of petitioner's access to confidential information that the honest investor no matter how diligently he tried, could not legally obtain. In doing so, it further advances an interpretation of § 10(b) and Rule 10b-5 that stops short of their full implications. Although the Court draws support for its position from certain precedent, I find its decision neither fully consistent with developments in the common law of fraud, nor fully in step with administrative and judicial application of Rule 10b-5 to "insider" trading. 58 The common law of actionable misrepresentation long has treated the possession of "special facts" as a key ingredient in the duty to disclose. See Strong v. Repide, 213 U.S. 419, 431-433, 29 S.Ct. 521, 525-526, 53 L.Ed.2d 853 (1909); 1 F. Harper & F. James, Law of Torts § 7.14 (1956). Traditionally, this factor has been prominent in cases involving confidential or fiduciary relations, where one party's inferiority of knowledge and dependence upon fair treatment is a matter of legal definition, as well as in cases where one party is on notice that the other is "acting under a mistaken belief with respect to a material fact." Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275, 283 (CA2 1975); see also Restatement of Torts § 551 (1938). Even at common law, however, there has been a trend away from strict adherence to the harsh maxim caveat emptor and toward a more flexible, less formalistic understanding of the duty to disclose. See, e. g., Keeton Fraud—Concealment and Non-Disclosure, 15 Texas L.Rev. 1, 31 (1936). Steps have been taken toward application of the "special facts" doctrine in a broader array of contexts where one party's superior knowledge of essential facts renders a transaction without disclosure inherently unfair. See James & Gray, Misrepresentation—Part II, 37 Md.L.Rev. 488, 526-527 (1978); 3 Restatement (Second) of Torts § 551(e), Comment l (1977); id., at 166-167 (Tent.Draft No. 10, 1964). See alsoLingsch v. Savage, 213 Cal.App.2d 729, 735-737, 29 Cal.Rptr. 201, 204-206 (1963); Jenkins v. McCormick, 184 Kan. 842, 844-845, 339 P.2d 8, 11 (1959); Jones v. Arnold, 359 Mo. 161, 169-170, 221 S.W.2d 187, 193-194 (1949); Simmons v. Evans, 185 Tenn. 282, 285-287, 206 S.W.2d 295, 296-297 (1947). 59 By its narrow construction of § 10(b) and Rule 10b-5, the Court places the federal securities laws in the rearguard of this movement, a position opposite to the expectations of Congress at the time the securities laws were enacted. Cf. H.R.Rep.No. 1383, 73d Cong., 2d Sess., 5 (1934). I cannot agree that the statute and Rule are so limited. The Court has observed that the securities laws were not intended to replicate the law of fiduciary relations. Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 474-476, 97 S.Ct. 1292, 1301-1302, 51 L.Ed.2d 480 (1977). Rather, their purpose is to ensure the fair and honest functioning of impersonal national securities markets where common-law protections have proved inadequate. Cf. United States v. Naftalin, 441 U.S. 768, 775, 99 S.Ct. 2077, 2082, 60 L.Ed.2d 624 (1979). As Congress itself has recognized, it is integral to this purpose "to assure that dealing in securities is fair and without undue preferences or advantages among investors." H.R.Conf.Rep.No. 94-229, p. 91 (1975), U.S.Code Cong. & Admin.News 1975, p. 323. 60 Indeed, the importance of access to "special facts" has been a recurrent theme in administrative and judicial application of Rule 10b-5 to insider trading. Both the SEC and the courts have stressed the insider's misuse of secret knowledge as the gravamen of illegal conduct. The Court, I think, unduly minimizes this aspect of prior decisions. 61 Cady, Roberts & Co., 40 S.E.C. 907 (1961), which the Court discusses at some length, provides an illustration. In that case, the Commission defined the category of "insiders" subject to a disclose-or-abstain obligation according to two factors: 62 "[F]irst, the existence of a relationship giving access, directly or indirectly, to information intended to be available only for a corporate purpose and not for the personal benefit of anyone, and second, the inherent unfairness involved where a party takes advantage of such information knowing it is unavailable to those with whom he is dealing." Id., at 912 (footnote omitted). 63 The Commission, thus regarded the insider "relationship" primarily in terms of access to nonpublic information, and not merely in terms of the presence of a common-law fiduciary duty or the like. This approach was deemed to be in keeping with the principle that "the broad language of the anti-fraud provisions" should not be "circumscribed by fine distinctions and rigid classifications," such as those that prevailed under the common law. Ibid. The duty to abstain or disclose arose, not merely as an incident of fiduciary responsibility, but as a result of the "inherent unfairness" of turning secret information to account for personal profit. This understanding of Rule 10b-5 was reinforced when Investors Management Co., 44 S.E.C. 633, 643 (1971), specifically rejected the contention that a "special relationship" between the alleged violator and an "insider" source was a necessary requirement for liability. 64 A similar approach has been followed by the courts. In SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 848 (CA2 1968) (en banc), cert. denied sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), the court specifically mentioned the common-law "special facts" doctrine as one source for Rule 10b-5, and it reasoned that the Rule is "based in policy on the justifiable expectation of the securities marketplace that all investors trading on impersonal exchanges have relatively equal access to material information." See also Lewelling v. First California Co., 564 F.2d 1277, 1280 (CA9 1977); Speed v. Transamerica Corp., 99 F.Supp. 808, 829 (D.Del.1951). In addition, cases such as Myzel v. Fields, 386 F.2d 718, 739 (CA8 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968), and A. T. Brod & Co. v. Perlow, 375 F.2d 393, 397 (CA2 1967), have stressed that § 10(b) and Rule 10b-5 apply to any kind of fraud by any person. The concept of the "insider" itself has been flexible; wherever confidential information has been abused, prophylaxis has followed. See, e. g., Zweig v. Hearst Corp., 594 F.2d 1261 (CA9 1979) (financial columnist); Shapiro v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 495 F.2d 228 (CA2 1974) (institutional investor); SEC v. Shapiro, 494 F.2d 1301 (CA2 1974) (merger negotiator); Chasins v. Smith, Barney & Co., 438 F.2d 1167 (CA2 1970) (market maker). See generally 2 A. Bromberg & L. Lowenfels, Securities Law & Commodities Fraud § 7.4(6)(b) (1979). 65 I believe, and surely thought, that this broad understanding of the duty to disclose under Rule 10b-5 was recognized and approved in Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). That case held that bank agents dealing in the stock of a Ute Indian development corporation had a duty to reveal to mixed-blood Indian customers that their shares could bring a higher price on a non-Indian market of which the sellers were unaware. Id., at 150-153, 92 S.Ct., at 1470-1472. The Court recognized that "by repeated use of the word 'any,' " the statute and Rule "are obviously meant to be inclusive." Id., at 151, 92 S.Ct., at 1471. Although it found a relationship of trust between the agents and the Indian sellers, the Court also clearly established that the bank and its agents were subject to the strictures of Rule 10b-5 because of their strategic position in the marketplace. The Indian sellers had no knowledge of the non-Indian market. The bank agents, in contrast, had intimate familiarity with the non-Indian market, which they had promoted actively, and from which they and their bank both profited. In these circumstances, the Court held that the bank and its agents "possessed the affirmative duty under the Rule" to disclose market information to the Indian sellers, and that the latter "had the right to know" that their shares would sell for a higher price in another market. Id., at 153, 92 S.Ct., at 1472. 66 It seems to me that the Court, ante, at 229-230, gives Affiliated Ute Citizens an unduly narrow interpretation. As I now read my opinion there for the Court, it lends strong support to the principle that a structural disparity in access to material information is a critical factor under Rule 10b-5 in establishing a duty either to disclose the information or to abstain from trading. Given the factual posture of the case, it was unnecessary to resolve the question whether such a structural disparity could sustain a duty to disclose even absent "a relationship of trust and confidence between parties to a transaction." Ante, at 230. Nevertheless, I think the rationale of Affiliated Ute Citizens definitely points toward an affirmative answer to that question. Although I am not sure I fully accept the "market insider" category created by the Court of Appeals, I would hold that persons having access to confidential material information that is not legally available to others generally are prohibited by Rule 10b-5 from engaging in schemes to exploit their structural informational advantage through trading in affected securities. To hold otherwise, it seems to me, is to tolerate a wide range of manipulative and deceitful behavior. See Blyth & Co., 43 S.E.C. 1037 (1969); Herbert L. Honohan, 13 S.E.C. 754 (1943); see generally Brudney, Insiders, Outsiders, and Informational Advantages under the Federal Securities Laws, 93 Harv.L.Rev. 322 (1979).2 67 Whatever the outer limits of the Rule, petitioner Chiarella's case fits neatly near the center of its analytical framework. He occupied a relationship to the takeover companies giving him intimate access to concededly material information that was sedulously guarded from public access. The information, in the words of Cady, Roberts & Co., 40 S.E.C., at 912, was "intended to be available only for a corporate purpose and not for the personal benefit of anyone." Petitioner, moreover, knew that the information was unavailable to those with whom he dealt. And he took full, virtually riskless advantage of this artificial information gap by selling the stocks shortly after each takeover bid was announced. By any reasonable definition, his trading was "inherent[ly] unfai[r]." Ibid. This misuse of confidential information was clearly placed before the jury. Petitioner's conviction, therefore, should be upheld, and I dissent from the Court's upsetting that conviction. 1 Of the five transactions, four involved tender offers and one concerned a merger. 588 F.2d 1358, 1363, n. 2 (CA2 1978). 2 SEC v. Chiarella, No. 77 Civ. Action No. 2534 (GLG) (SDNY May 24, 1977). 3 Section 32(a) of the 1934 Act sanctions criminal penalties against any person who willfully violates the Act. 15 U.S.C. § 78ff(a) (1976 ed., Supp. II). Petitioner was charged with 17 counts of violating the Act because he had received 17 letters confirming purchase of shares. 4 450 F.Supp. 95 (SDNY 1978). 5 Only Rules 10b-5(a) and (c) are at issue here. Rule 10b-5(b) provides that it shall be unlawful "[t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading." 17 CFR § 240.10b-5(b) (1979). The portion of the indictment based on this provision was dismissed because the petitioner made no statements at all in connection with the purchase of stock. 6 Record 682-683, 686. 7 See Securities Exchange Act Release No. 3230 (May 21, 1942), 7 Fed.Reg. 3804 (1942). 8 In Cady, Roberts, the broker-dealer was liable under § 10(b) because it received nonpublic information from a corporate insider of the issuer. Since the insider could not use the information, neither could the partners in the brokerage firm with which he was associated. The transaction in Cady, Roberts involved sale of stock to persons who previously may not have been shareholders in the corporation. 40 S.E.C., at 913, and n. 21. The Commission embraced the reasoning of Judge Learned Hand that "the director or officer assumed a fiduciary relation to the buyer by the very sale; for it would be a sorry distinction to allow him to use the advantage of his position to induce the buyer into the position of a beneficiary although he was forbidden to do so once the buyer had become one." Id., at 914, n. 23, quoting Gratz v. Claughton, 187 F.2d 46, 49 (CA2), cert. denied, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1353 (1951). 9 Restatement (Second) of Torts § 551(2)(a) (1976). See James & Gray, Misrepresentation—Part II, 37 Md.L.Rev. 488, 523-527 (1978). As regards securities transactions, the American Law Institute recognizes that "silence when there is a duty to . . . speak may be a fraudulent act." ALI, Federal Securities Code § 262(b) (Prop. Off. Draft 1978). 10 See 3 W. Fletcher, Cyclopedia of the Law of Private Corporations § 838 (rev. 1975); 3A id., §§ 1168.2, 1171, 1174; 3 L. Loss, Securities Regulation 1446-1448 (2d ed. 1961); 6 id., at 3557-3558 (1969 Supp.). See also Brophy v. Cities Service Co., 31 Del.Ch. 241, 70 A.2d 5 (1949). See generally Note, Rule 10b-5: Elements of a Private Right of Action, 43 N.Y.U.L.Rev. 541, 552-553, and n. 71 (1968); 75 Harv.L.Rev. 1449, 1450 (1962); Daum & Phillips, The Implications of Cady, Roberts, 17 Bus.L. 939, 945 (1962). The dissent of Mr. Justice BLACKMUN suggests that the "special facts" doctrine may be applied to find that silence constitutes fraud where one party has superior information to another. Post, at 247-248. This Court has never so held. In Strong v. Repide, 213 U.S. 419, 431-434, 29 S.Ct. 521, 525, 526, 53 L.Ed. 853 (1909), this Court applied the special-facts doctrine to conclude that a corporate insider had a duty to disclose to a shareholder. In that case, the majority shareholder of a corporation secretly purchased the stock of another shareholder without revealing that the corporation, under the insider's direction, was about to sell corporate assets at a price that would greatly enhance the value of the stock. The decision in Strong v. Repide was premised upon the fiduciary duty between the corporate insider and the shareholder. See Pepper v. Litton, 308 U.S. 295, 307, n. 15, 60 S.Ct. 238, 245, n. 15, 84 L.Ed. 281 (1939). 11 See also SEC v. Great American Industries, Inc., 407 F.2d 453, 460 (CA2 1968), cert. denied, 395 U.S. 920, 89 S.Ct. 1770, 23 L.Ed.2d 237 (1969); Kohler v. Kohler Co., 319 F.2d 634, 637-638 (CA7 1963); Note, 43 N.Y.U.L.Rev., supra, n. 10, at 554; Note, The Regulation of Corporate Tender Offers Under Federal Securities Law: A New Challenge for Rule 10b-5, 33 U.Chi.L.Rev. 359, 373-374 (1966). See generally Note, Civil Liability under Rule X-10b-5, 42 Va.L.Rev. 537, 554-561 (1956). 12 "Tippees" of corporate insiders have been held liable under § 10(b) because they have a duty not to profit from the use of inside information that they know is confidential and know or should know came from a corporate insider, Shapiro v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 495 F.2d 228, 237-238 (CA2 1974). The tippee's obligation has been viewed as arising from his role as a participant after the fact in the insider's breach of a fiduciary duty. Subcommittees of American Bar Association Section of Corporation, Banking, and Business Law, Comment Letter on Material, Non-Public Information (Oct. 15, 1973), reprinted in BNA, Securities Regulation & Law Report No. 233, pp. D-1, D-2 (Jan. 2, 1974). 13 See Fleischer, Mundheim, & Murphy, An Initial Inquiry into the Responsibility to Disclose Market Information, 121 U.Pa.L.Rev. 798, 799 (1973). 14 The Court of Appeals said that its "regular access to market information" test would create a workable rule embracing "those who occupy . . . strategic places in the market mechanism." 588 F.2d, at 1365. These considerations are insufficient to support a duty to disclose. A duty arises from the relationship between parties, see nn. 9 and 10, supra, and accompanying text, and not merely from one's ability to acquire information because of his position in the market. The Court of Appeals also suggested that the acquiring corporation itself would not be a "market insider" because a tender offeror creates, rather than receives, information and takes a substantial economic risk that its offer will be unsuccessful. 588 F.2d, at 1366-1367. Again, the Court of Appeals departed from the analysis appropriate to recognition of a duty. The Court of Appeals for the Second Circuit previously held, in a manner consistent with our analysis here, that a tender offeror does not violate § 10(b) when it makes preannouncement purchases precisely because there is no relationship between the offeror and the seller: "We know of no rule of law . . . that a purchaser of stock, who was not an 'insider' and had no fiduciary relation to a prospective seller, had any obligation to reveal circumstances that might raise a seller's demands and thus abort the sale." General Time Corp. v. Talley Industries, Inc., 403 F.2d 159, 164 (1968), cert. denied, 393 U.S. 1026, 89 S.Ct. 631, 21 L.Ed.2d 570 (1969). 15 Title 15 U.S.C. § 78m(d)(1) (1976 ed., Supp. II) permits a tender offeror to purchase 5% of the target company's stock prior to disclosure of its plans for acquisition. 16 Section 11 of the 1934 Act generally forbids a member of a national securities exchange from effecting any transaction on the exchange for its own account. 15 U.S.C. § 78k(a)(1). But Congress has specifically exempted specialists from this prohibition—broker-dealers who execute orders for customers trading in a specific corporation's stock, while at the same time buying and selling that corporation's stock on their own behalf. § 11(a)(1)(A), 15 U.S.C. § 78k(a)(1)(A); see S.Rep.No. 94-75, p. 99 (1975), U.S.Code Cong. & Admin.News 1975, p. 179; Securities and Exchange Commission, Report of Special Study of Securities Markets, H.R.Doc.No. 95, 88th Cong., 1st Sess., pt. 2, pp. 57-58, 76 (1963). See generally S. Robbins, The Securities Markets 191-193 (1966). The exception is based upon Congress' recognition that specialists contribute to a fair and orderly marketplace at the same time they exploit the informational advantage that comes from their possession of buy and sell orders. H.R.Doc.No. 95, supra, at 78-80. Similar concerns with the functioning of the market prompted Congress to exempt market makers, block positioners, registered odd-lot dealers, bona fide arbitrageurs, and risk arbitrageurs from § 11's general prohibition on member trading. 15 U.S.C. §§ 78k(a)(1)(A)-(D); see S.Rep.No. 94-75, supra, at 99. See also Securities Exchange Act Release No. 34-9950, 38 Fed.Reg. 3902, 3918 (1973). 17 Fleischer, Mundheim, & Murphy, supra n. 13, at 811-812. 18 SEC Proposed Rule § 240.14e-3, 44 Fed.Reg. 70352-70355, 70359 (1979). 19 1 SEC Institutional Investor Study Report, H.R.Doc.No. 92-64, pt. 1, p. xxxii (1971). 20 Mr. Justice BLACKMUN's dissent would establish the following standard for imposing criminal and civil liability under § 10(b) and Rule 10b-5: "[P]ersons having access to confidential material information that is not legally available to others generally are prohibited . . . from engaging in schemes to exploit their structural informational advantage through trading in affected securities." Post, at 251. This view is not substantially different from the Court of Appeals' theory that anyone "who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose," quoting 588 F.2d, at 1365, and must be rejected for the reasons stated in Part III. Additionally, a judicial holding that certain undefined activities "generally are prohibited" by § 10(b) would raise questions whether either criminal or civil defendants would be given fair notice that they have engaged in illegal activity. Cf. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). It is worth noting that this is apparently the first case in which criminal liability has been imposed upon a purchaser for § 10(b) nondisclosure. Petitioner was sentenced to a year in prison, suspended except for one month, and a 5-year term of probation. 588 F.2d, at 1373, 1378 (Meskill, J., dissenting). 21 The dissent of THE CHIEF JUSTICE relies upon a single phrase from the jury instructions, which states that the petitioner held a "confidential position" at Pandick Press, to argue that the jury was properly instructed on the theory "that a person who has misappropriated nonpublic information has an absolute duty to disclose that information or to refrain from trading." Post, at 240. The few words upon which this thesis is based do not explain to the jury the nature and scope of the petitioner's duty to his employer, the nature and scope of petitioner's duty, if any, to the acquiring corporation, or the elements of the tort of misappropriation. Nor do the jury instructions suggest that a "confidential position" is a necessary element of the offense for which petitioner was charged. Thus, we do not believe that a "misappropriation" theory was included in the jury instructions. The conviction would have to be reversed even if the jury had been instructed that it could convict the petitioner either (1) because of his failure to disclose material, nonpublic information to sellers or (2) because of a breach of a duty to the acquiring corporation. We may not uphold a criminal conviction if it is impossible to ascertain whether the defendant has been punished for noncriminal conduct. United States v. Gallagher, 576 F.2d 1028, 1046 (CA3 1978); see Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 1545-1546, 23 L.Ed.2d 57 (1969); Stromberg v. California, 283 U.S. 359, 369-370, 51 S.Ct. 532, 535-536, 75 L.Ed. 1117 (1931). * See Eason v. General Motors Acceptance Corp., 490 F.2d 654 (CA7 1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312. The specific holding in Eason was rejected in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539. However, the limitation on the right to recover pecuniary damages in a private action identified in Blue Chip is not necessarily coextensive with the limits of the rule itself. Cf. Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 42, n. 28, 43, n. 30, 47, n. 33, 97 S.Ct. 926, 949, n. 28, 950, n. 30, 952, n. 33, 51 L.Ed.2d 124. 1 Academic writing in recent years has distinguished between "corporate information"—information which comes from within the corporation and reflects on expected earnings or assets—and "market information." See, e. g., Fleischer, Mundheim, & Murphy, An Initial Inquiry into the Responsibility to Disclose Market Information, 121 U.Pa.L.Rev. 798, 799 (1973). It is clear that § 10(b) and Rule 10b-5 by their terms and by their history make no such distinction. See Brudney, Insiders, Outsiders, and Informational Advantages Under the Federal Securities Laws, 93 Harv.L.Rev. 322, 329-333 (1979). 2 See Financial Analysts Rec., Oct. 7, 1968, pp. 3, 5 (interview with SEC General Counsel Philip A. Loomis, Jr.) (the essential characteristic of insider information is that it is "received in confidence for a purpose other than to use it for the person's own advantage and to the disadvantage of the investing public in the market"). See also Note, The Government Insider and Rule 10b-5: A New Application for an Expanding Doctrine, 47 S.Cal.L.Rev. 1491, 1498-1502 (1974). 3 This interpretation of the antifraud provisions also finds support in the recently proposed Federal Securities Code prepared by the American Law Institute under the direction of Professor Louis Loss. The ALI Code would construe the antifraud provisions to cover a class of "quasi-insiders," including a judge's law clerk who trades on information in an unpublished opinion or a Government employee who trades on a secret report. See ALI Federal Securities Code § 1603, comment 3(d), pp. 538-539 (Prop.Off.Draft 1978). These quasi-insiders share the characteristic that their informational advantage is obtained by conversion and not by legitimate economic activity that society seeks to encourage. 4 There is some language in the Court's opinion to suggest that only "a relationship between petitioner and the sellers . . . could give rise to a duty [to disclose]." Ante, at 232. The Court's holding, however, is much more limited, namely, that mere possession of material, nonpublic information is insufficient to create a duty to disclose or to refrain from trading. Ante, at 235. Accordingly, it is my understanding that the Court has not rejected the view, advanced above, that an absolute duty to disclose or refrain arises from the very act of misappropriating nonpublic information. 1 The Court fails to specify whether the obligations of a special relationship must fall directly upon the person engaging in an allegedly fraudulent transaction, or whether the derivative obligations of "tippees," that lower courts long have recognized, are encompassed by its rule. See ante, at 230, n. 12; cf. Foremost-McKesson, Inc. v. Provident Securities Co., 423 U.S. 232, 255, n. 29, 96 S.Ct. 508, 521, n. 29, 46 L.Ed.2d 464 (1976). 2 The Court observes that several provisions of the federal securities laws limit but do not prohibit trading by certain investors who may possess nonpublic market information. Ante, at 233-234. It also asserts that "neither the Congress nor the Commission ever has adopted a parity-of-information rule." Ante, at 233. In my judgment, neither the observation nor the assertion undermines the interpretation of Rule 10b-5 that I support and that I have endeavored briefly to outline. The statutory provisions cited by the Court betoken a congressional purpose not to leave the exploitation of structural informational advantages unregulated. Letting Rule 10b-5 operate as a "catchall" to ensure that these narrow exceptions granted by Congress are not expanded by circumvention completes this statutory scheme. Furthermore, there is a significant conceptual distinction between parity of information and parity of access to material information. The latter gives free rein to certain kinds of informational advantages that the former might foreclose, such as those that result from differences in diligence or acumen. Indeed, by limiting opportunities for profit from manipulation of confidential connections or resort to stealth, equal access helps to ensure that advantages obtained by honest means reap their full reward.

01

445 U.S. 253 100 S.Ct. 1127 63 L.Ed.2d 373 UNITED STATES, Petitioner,v.Glen M. CLARKE et al. No. 78-1693. Argued Jan. 15, 16, 1980. Decided March 18, 1980. Syllabus Held : Title 25 U.S.C. § 357, which provides that lands allotted in severalty to Indians may be "condemned" for any public purpose under the laws of the State or Territory where located, does not authorize a state or local government to "condemn" allotted Indian trust lands by physical occupation. Under the "plain meaning" canon of statutory construction, the term "condemned" in § 357 refers to a formal condemnation proceeding instituted by the condemning authority for the purpose of acquiring title to private property and paying just compensation for it, not to an "inverse condemnation" action by a landowner to recover compensation for a taking by physical intrusion. Thus, the Court of Appeals erred in holding that § 357 permitted acquisition of allotted lands by inverse condemnation by certain cities in Alaska, even though Alaska law might allow the exercise of the power of eminent domain through inverse condemnation. Pp. 254-259. 9 Cir., 590 F.2d 765, reversed. Harlon L. Dalton, for petitioner. Robert S. Pelcyger, Boulder, Colo., for respondent Tabbytite supporting petitioner. Richard A. Weinig, Anchorage, Alaska, for respondents Municipality of Anchorage, et al. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 We granted the petition for certiorari of the United States in this case, 444 U.S. 822, 100 S.Ct. 41, 62 L.Ed.2d 28, to decide the question "[w]hether 25 U.S.C. [§] 357 authorizes a state or local government to 'condemn' allotted Indian trust lands by physical occupation." Pet. for Cert. 2. That statute, in turn, provides in pertinent part: 2 "[L]ands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee." 31 Stat. 1084. 3 We think this is a case in which the meaning of a statute may be determined by the admittedly old-fashioned but nonetheless still entirely appropriate "plain meaning" canon of statutory construction. We further believe that the word "condemned," at least as it was commonly used in 1901, when 25 U.S.C. § 357 was enacted, had reference to a judicial proceeding instituted for the purpose of acquiring title to private property and paying just compensation for it. 4 Both the factual and legal background of the case are complicated, but these complications lose their significance under our interpretation of § 357. For it is conceded that neither the city of Glen Alps nor the city of Anchorage, both Alaska municipal corporations, ever brought an action to condemn the lands here in question in federal court as required by Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939). And since we hold that only in such a formal judicial proceeding may lands such as this be acquired, the complex factual and legal history of the dispute between the Government, respondents Glen M. Clarke et al., and respondent Bertha Mae Tabbytite need not be recited in detail.1 5 The Court of Appeals for the Ninth Circuit held that § 357 permits acquisition of allotted lands by what has come to be known as "inverse condemnation." 590 F.2d 765 (1979. In so holding, the court reasoned that "once the taking has been accomplished by the state it serves little purpose to interpret the statute to refuse to permit an inverse condemnation suit to be maintained on the groun[d] that the state should have filed an eminent domain action prior to the taking." Id., at 767. We disagree with the Court of Appeals and accordingly reverse the judgment. 6 There are important legal and practical differences between an inverse condemnation suit and a condemnation proceeding. Although a landowner's action to recover just compensation for a taking by physical intrusion has come to be referred to as "inverse" or "reverse" condemnation, the simple terms "condemn" and "condemnation" are not commonly used to describe such an action. Rather, a "condemnation" proceeding is commonly understood to be an action brought by a condemning authority such as the Government in the exercise of its power of eminent domain. In United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539 (1903), for example, which held that the Federal Government's permanent flooding of the plaintiff's land constituted a compensable "taking" under the Fifth Amendment, this Court consistently made separate reference to condemnation proceedings and to the landowner's cause of action to recover damages for the taking. Id., at 462, 467, 468, 23 S.Ct., at 353, 355, 356.2 7 More recent decisions of this Court reaffirm this well-established distinction between condemnation actions and physical takings by governmental bodies that may entitle a landowner to sue for compensation. Thus, in Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 291, 78 S.Ct. 1174, 1183, 2 L.Ed.2d 1313 (1958), when discussing the acquisition by the Government of property rights necessary to carry out a reclamation project, this Court stated that such rights must be acquired by "paying just compensation therefor, either through condemnation or, if already taken, through action of the owners in the courts." And in United States v. Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382, 1385, 91 L.Ed. 1789 (1947), this Court referred to the Government's choice "not to condemn land but to bring about a taking by a continuous process of physical events." See also id., at 747-748, 67 S.Ct., at 1384; Dugan v. Rank, 372 U.S. 609, 619, 83 S.Ct. 999, 1005, 10 L.Ed.2d 15 (1963).3 8 The phrase "inverse condemnation" appears to be one that was coined simply as a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted. As defined by one land use planning expert, "[i]nverse condemnation is 'a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.' " D. Hagman, Urban Planning and Land Development Control Law 328 (1971) (emphasis added). A landowner is entitled to bring such an action as a result of "the self-executing character of the constitutional provision with respect to compensation. . . ." See 6 P. Nichols, Eminent Domain § 25.41 (3d rev.ed.1972). A condemnation proceeding, by contrast, typically involves an action by the condemnor to effect a taking and acquire title. The phrase "inverse condemnation," as a common understanding of that phrase would suggest, simply describes an action that is the "inverse" or "reverse" of a condemnation proceeding. 9 There are also important practical differences between condemnation proceedings and actions by landowners to recover compensation for "inverse condemnation." Condemnation proceedings, depending on the applicable statute, require various affirmative action on the part of the condemning authority. To accomplish a taking by seizure, on the other hand, a condemning authority need only occupy the land in question. Such a taking thus shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation. And in the case of Indian trust lands, which present the Government " 'with an almost staggering problem in attempting to discharge its trust obligations with respect to thousands upon thousands of scattered Indian allotments,' " Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 374, 88 S.Ct. 982, 986, 19 L.Ed.2d 1238 (1968), the United States may be placed at a significant disadvantage by this shifting of the initiative from the condemning authority to the condemnee. 10 Likewise, the choice of the condemning authority to take property by physical invasion rather than by a formal condemnation action may also have important monetary consequences. The value of property taken by a governmental body is to be ascertained as of the date of taking. United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336 (1943). In a condemnation proceeding, the taking generally occurs sometime during the course of the proceeding, and thus compensation is based on a relatively current valuation of the land. See 1 L. Orgel, Valuation in Eminent Domain § 21, n.29 (2d ed. 1953). When a taking occurs by physical invasion, on the other hand, the usual rule is that the time of the invasion constitutes the act of taking, and "[i]t is that event which gives rise to the claim for compensation and fixes the date as of which the land is to be valued . . . ." United States v. Dow, 357 U.S. 17, 22, 78 S.Ct. 1039, 1044, 2 L.Ed.2d 1109 (1958). 11 Thus, even assuming that the term "inverse condemnation" were in use in 1901 to the same extent as it is today, there are sufficient legal and practical differences between "condemnation" and "inverse condemnation" to convince us that when § 357 authorizes the condemnation of lands pursuant to the laws of a State or Territory, the term "condemned" refers not to an action by a landowner to recover compensation for a taking, but to a formal condemnation proceeding instituted by the condemning authority.4 12 Respondent municipality of Anchorage argues that the action authorized by the Court of Appeals here should be regarded as one in condemnation because Alaska law allows the "exercise of the power of eminent domain through inverse condemnation or a taking in the nature of inverse condemnation." Brief for Respondent Municipality of Anchorage 16. But we do not reach questions of Alaska law here because 25 U.S.C. § 357, although prescribing that allotted lands "may be condemned for any public purpose under the laws of the State or Territory where located," requires that they nonetheless be "condemned." It is conceded that there has never been a formal condemnation action instituted in this case. Since we construe such an action to be an indispensable prerequisite for the reliance of any State or Territory on the other provisions of this section, we therefore reverse the judgment of the Court of Appeals. 13 Reversed. 14 Mr. Justice BLACKMUN, with whom Mr. Justice WHITE joins, dissenting. 15 Since the Court's opinion sets forth none of the facts of this case, it may be well to mention at least a few. 16 Bertha Mae Tabbytite, an American Indian, in 1954 settled on a 160-acre plot in the Chugach Mountains southeast of Anchorage, Alaska. She initially sought to perfect her claim to the land under the homestead laws and thereby to obtain an unrestricted fee title. Her applications for this were unsuccessful, however, and in 1966 Tabbytite agreed to accept a restricted trust patent to the land as an Indian allottee. As a result, the legal title remains in the United States, and Tabbytite's powers of alienation are restricted. See 25 U.S.C. § 348. 17 Meanwhile, in 1958 Glen Clarke and his wife applied for a homestead patent on 80 acres adjoining the Tabbytite allotment. Two months later, without obtaining an easement, they constructed a road across that land. The Clarkes repeatedly contested Tabbytite's homestead application and prevented her from perfecting her patent. After securing their own patent in 1961, the Clarkes subdivided their property into 40 parcels, most of which were sold to others before this litigation began. That subdivision and surrounding lands were incorporated in June 1961 as a third-class city called Glen Alps. As a third-class city under Alaska law, Glen Alps did not possess the power of eminent domain. 18 In 1969, the United States filed the present action for damages and to enjoin the use of the road across the Tabbytite allotment. The District Court awarded damages for trespass but denied the injunction. The court concluded that the road was a "way of necessity," and that closing the road would cause "hardship" to the defendants. On the initial appeal to the United States Court of Appeals for the Ninth Circuit, that court reversed and did so on the grounds that upon entry in 1954 Tabbytite's title to the land was good against everyone except the United States Government, and that the Clarkes were not successors in interest to an easement implicitly retained by the Government. 529 F.2d 984 (1976). 19 That ruling, however, was not the end of the case. In September 1975, the municipality of Anchorage annexed Glen Alps and apparently took over maintenance of the roadway. On the remand to the District Court, the municipality entered the proceedings and opposed an injunction on the ground that it already had effectively exercised its power of eminent domain by "inverse condemnation." The United States took the position that the federal statute consenting to condemnation of allotted lands, 25 U.S.C. § 357, does not authorize inverse condemnation. The District Court ruled that under the federal statute, state law determines the propriety of condemnation proceedings and that Alaska law, indeed, recognized "inverse condemnation." The court held, accordingly, that Tabbytite was entitled to just compensation but that an injunction should not issue. 20 On appeal, the Ninth Circuit affirmed and remanded the case for further proceedings. 590 F.2d 765 (1979). It agreed with the District Court that § 357 permits a State to take Indian land by paying compensation in an inverse condemnation action. It reasoned that "once the taking has been accomplished by the state it serves little purpose to interpret the statute to refuse to permit an inverse condemnation suit to be maintained on the grounds that the state should have filed an eminent domain action prior to the taking." 590 F.2d, at 767. It observed that "it seems a contradiction to deny Indian beneficial owners a cause of action for damages under the guise of protecting their rights." It predicted that its holding would encourage States and political subdivisions to act "with more circumspection, not less, when governmental activities conflict with ownership rights of Indian trust lands." Ibid. 21 I find the opinion of the Ninth Circuit persuasive. The present case is not a dispute about a right but about a remedy. There is, of course, no question that if § 357 applies, Anchorage has the right to take Tabbytite's property through traditional eminent domain proceedings, and that Tabbytite has a right to just compensation if it does so. The case centers, however, in the fact that the municipality already has taken an interest in the property without a formal proceeding; the issue, then, is whether an after-the-fact award of just compensation is an adequate remedy. The dispute is in the measure of damages. 22 There is no question that inverse condemnation is recognized by Alaska law in circumstances similar to the present case. State of Alaska, Dept. of Highways v. Crosby, 410 P. 2d 724 (Alaska 1966); City of Anchorage v. Nesbett, 530 P.2d 1324 (Alaska 1975).* As I read § 357, it does not prohibit resort to inverse condemnation under state law. The statute explicitly refers to state law, and I read in the statute no specialized definition of the term "condemned" as a matter of federal law. 23 The United States and Tabbytite perhaps are concerned that in an action for inverse condemnation, the property interest will be valued at the earlier date of the entry rather than at the subsequent date of the institution of formal condemnation proceedings. The inference, of course, is that the property interest will have appreciated in value in the interim, to the advantage of the Indian allottee. I suspect that this argument has more form than substance. Interest during the intervening period will make up much of the difference. And still more of that difference might well be the result of the improvement for which eminent domain is belatedly invoked. There is perhaps little reason to doubt, in this very case, that the Tabbytite property is more valuable because it is crossed by a graded, improved, and publicly maintained road. 24 For these reasons, I would affirm the judgment of the Court of Appeals, and I respectfully dissent from the Court's reversal of that judgment. 1 Respondent Tabbytite lost in the Court of Appeals for the Ninth Circuit and did not petition for certiorari from that decision. She is therefore a respondent in this Court. This Court's Rule 21(4). Her counsel has filed both a brief and reply brief adopting the statements of the case and the arguments set forth in the brief of the United States, but principally devoted to matters not included in the Brief for the United States." Since we agree with the position advanced by the United States, we need not decide whether Tabbytite's arguments comply with this Court's Rule 40(1)(d)(2). See also Rule 40(3). 2 The landowner's right to sue for damages was based on the theory that if a landowner were entitled to have governmental agents enjoined from taking his land without implementing condemnation proceedings, he also was entitled to waive that right and to demand just compensation as if the Government had taken his property under its sovereign right of eminent domain. 188 U.S., at 462, 23 S.Ct., at 353. See also, e. g., United States v. Great Falls Manufacturing Co., 112 U.S. 645, 656, 5 S.Ct. 306, 310, 28 L.Ed. 846 (1884). Cf. United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882) (holding that landowner could bring suit for ejectment against federal officials who took possession of land without bringing condemnation proceedings); Winslow v. Baltimore & Ohio R. Co., 188 U.S. 646, 660-661, 23 S.Ct. 443, 448, 47 L.Ed. 635 (1903) (after declining to treat a suit for damages by a landowner as condemnation action, the Court directed the lower court to enjoin temporarily proceedings brought by the landowner to dispossess the railroad company from the land "in order to enable [the railroad company] to condemn such land in proper proceedings for that purpose, which cannot be taken in the present suit"). 3 Also, in United States v. Dow, 357 U.S. 17, 21, 78 S.Ct. 1039, 1044, 2 L.Ed.2d 1109 (1958), this Court stated: "Broadly speaking, the United States may take property pursuant to its power of eminent domain in one of two ways: it can enter into physical possession of property without authority of a court order; or it can institute condemnation proceedings under various Acts of Congress providing authority for such takings. Under the first method—physical seizure—no condemnation proceedings are instituted, and the property owner is provided a remedy under the Tucker Act, 28 U.S.C. §§ 1346(a)(2) and 1491, to recover just compensation. See Hurley v. Kincaid, 285 U.S. 95, 104, 52 S.Ct. 127, 76 L.Ed. 521. Under the second procedure the Government may either employ statutes which require it to pay over the judicially determined compensation before it can enter upon the land, . . . or proceed under other statutes which enable it to take immediate possession upon order of court before the amount of just compensation has been ascertained." 4 The legislative history of § 357 does not provide any meaningful guidance as to the meaning of "condemned." The language eventually adopted as § 357 was not part of the original bill. It was inserted, without comment or discussion, on the Senate floor. 34 Cong.Rec. 1448 (1901). And the House Report only briefly discussed § 3 of the Act, to which § 357 was added. It stated: "Fifth. Providing for the opening of highways through like lands under State and Territorial laws and upon the payment of compensation." H.R.Rep.No.2064, 56th Cong., 2d Sess., 3 (1900). * It is not clear that Alaska law would permit deliberate resort to inverse condemnation as a means of avoiding initiation of formal condemnation proceedings. That issue is not before us, since Anchorage first assumed responsibility for the road under a claim of right under the first judgment of the District Court.

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445 U.S. 198 100 S.Ct. 1095 63 L.Ed.2d 329 Douglas M. COSTLE, Administrator, Environmental Protection Agency, Petitioner,v.PACIFIC LEGAL FOUNDATION et al. No. 78-1472. Argued Dec. 5, 1979. Decided March 18, 1980. Rehearing Denied May 12, 1980. See 446 U.S. 947, 100 S.Ct. 2177. Syllabus Section 402(a)(1) of the Federal Water Pollution Control Act (FWPCA) authorizes the Administrator of the Environmental Protection Agency (EPA), "after opportunity for public hearing," to issue a permit for the discharge of any pollutant upon condition that such discharge will meet all applicable requirements of the FWPCA or such conditions as the Administrator determines are necessary to carry out the Act's goals and objectives. Implementing regulations provide for public notice of the proposed issuance, denial, or modification of a permit; direct the EPA Regional Administrator to hold a public hearing on the proposed action if he finds a significant degree of public interest; and permit any interested person to request an "adjudicatory hearing" after the EPA's determination to take the proposed action. Such a request will be granted if it "[s]ets forth material issues of fact relevant to the questions of whether a permit should be issued, denied or modified." Respondent city of Los Angeles (city) owns a sewage treatment plant that is operated under permits issued by the EPA pursuant to the National Pollutant Discharge Elimination System (NPDES), established by the FWPCA. The city's current permit, as issued in 1975, conditioned continued discharges from the sewage treatment plant into the Pacific Ocean on the city's compliance with a schedule for achieving full secondary treatment of wastewater by October 1, 1979. In April 1977, the EPA advised the city that it proposed to extend the expiration date of the 1975 permit for a second time, to December 17, 1979, with all other terms and conditions of the permit to remain unchanged. Notice of the proposed action was published in the Los Angeles Times, but neither the city nor any other party, including respondent Pacific Legal Foundation, requested a hearing or filed comments on the proposed extension, and the EPA Regional Administrator determined that public interest in the modification proposal was insufficient to warrant a public hearing. After respondent Kilroy's postdetermination request for an adjudicatory hearing was denied on the ground that it did not set forth material issues of fact relevant to the question whether the permit should be extended, respondents filed petitions with the Court of Appeals seeking review of the Regional Administrator's action. The Court of Appeals held that the EPA had failed to provide the "opportunity for public hearing" required by § 402(a)(1) when it extended the federal permit, and remanded for a "proper hearing." In so holding, the court concluded that the EPA is required to justify every failure to hold a hearing on a permit action by proof that the material facts supporting the action "are not subject to dispute." Held: 1. The Court of Appeals erred in concluding that the EPA is required to hold a public hearing on every NPDES permit action it takes unless it can show that the material facts supporting its action "are not subject to dispute." Rather, the implementing regulations in question are fully consistent with the FWPCA's purpose to provide the public with an "opportunity" for a hearing concerning agency actions respecting water pollution control, and are valid. Pp. 213-216. 2. Respondents have failed to demonstrate that the regulations in question were not applied properly in the context of this case. Pp. 216-220. (a) Under the circumstances presented here, it was reasonable for the Regional Administrator to extend the permit's expiration date without further public hearing, on the grounds that the public had not exhibited a significant degree of interest in the proposed action, and that information pertinent to such a decision would not have been adduced if a hearing had been held. Pp. 216-218. (b) The form of notice by newspaper publication was adequate. The city's argument that the notice was inadequate because its understanding of the compliance schedules was contrary to the EPA's was not pertinent to the agency's decision to extend the permit's expiration date. Pp. 218-219. (c) The EPA did not err in failing to hold an adjudicatory hearing on the issues raised in respondent Kilroy's request because that request did not set forth material issues of fact pertinent to the question whether the permit's expiration date should be extended. Pp. 219-220. 586 F.2d 650, reversed. William H. Alsup, Washington, D. C., for petitioner. Robert K. Best, Sacramento, Cal., for respondents. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 This case, in a sense, is a tale of a great city's—and the Nation's—basic problems in disposing of human waste. "How" and "where" are the ultimate questions, and they are intertwined. The issues presently before the Court, however, center in the administrative processes by which the city and the Nation seek to resolve those basic problems. 2 * Respondent city of Los Angeles owns and operates the Hyperion Wastewater Treatment Plant located in Playa Del Rey, Cal. Since 1960, the Hyperion plant has processed most of the city's sewage, and has discharged the wastes through three "outfalls" extending into the Pacific Ocean. The shortest outfall terminates about one mile from the coastline in 50 feet of water. It is operative only during emergencies caused by increased sewage flow during wet weather or by power failures at the pumping plant. The second outfall terminates about five miles out. Approximately 340 million gallons of treated wastewater are discharged every day into the ocean, at a depth of 187 feet, through that outfall. This wastewater receives at least "primary treatment,"1 but about one-third of the flow also receives "secondary treatment"2 by an activated sludge process. The third outfall terminates about seven miles from the coast. It is through this third outfall that the solids that have been removed during treatment are discharged into the ocean, at a depth of 300 feet. Prior to discharge the solid materials, commonly referred to as sludge have been digested, screened, and diluted with secondary effluent. App. 3-4. 3 The Hyperion plant is operated under permits issued by the Environmental Protection Agency (EPA) and the California Regional Water Quality Control Board (CRWQCB). Such permits are issued pursuant to the National Pollutant Discharge Elimination System (NPDES), established by § 402 of the Federal Water Pollution Control Act (FWPCA), as added by the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 880, and as amended, 33 U.S.C. § 1342 (1976 ed. and Supp. II).3 The FWPCA was enacted with a stated and obviously worthy objective, that is, "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 101(a), 86 Stat. 816, 33 U.S.C. § 1251(a). In order to achieve that objective, Congress declared that "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." § 101(a)(1). 4 As one means of reaching that goal, Congress in § 301(a) of the FWPCA provided: "Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act [33 U.S.C. §§ 1312, 1316, 1317, 1328, 1342, and 1344], the discharge of any pollutant by any person shall be unlawful." 86 Stat. 844, 33 U.S.C. § 1311(a). Section 402(a)(1) authorizes the Administrator of the EPA, "after opportunity for public hearing," to issue a permit for the discharge of any pollutant, notwithstanding § 301(a), upon condition that such discharge will meet all applicable requirements established in other sections of the Act, or such conditions as the Administrator determines are necessary to carry out the Act's goals and objectives. 86 Stat. 880, 33 U.S.C. § 1342(a)(1). One of the requirements applicable to an NPDES permit for a publicly owned treatment works, such as the Hyperion plant, is specified in § 301(b)(1)(B). That provision requires such works in existence on July 1, 1977, to achieve "effluent limitations based upon secondary treatment as defined by the Administrator."4 86 Stat. 845, 33 U.S.C. § 1311(b)(1)(B). II 5 The EPA has promulgated regulations providing for notice and public participation in any permit proceeding under the NPDES. Those regulations, implementing the statutory requirement that any NPDES permit be issued "after opportunity for public hearing," are the focus of this case. The regulations state: "Public notice of the proposed issuance, denial or modification of every permit or denial shall be circulated in a manner designed to inform interested and potentially interested persons of the discharge and of the proposed determination to issue, deny, or modify a permit for the discharge." 40 CFR § 125.32(a) (1978).5 That public notice "shall include at least": (1) circulation of the notice within the affected geographical area by posting in the post office and "public places" nearest the applicant's premises, or posting "near the entrance to the applicant's premises and in nearby places," or publication in local newspapers; (2) the mailing of notice to the permit applicant and "appropriate" federal and state authorities; and (3) the mailing of notice to any person or group who has requested placement on the NPDES permit mailing list for actions affecting the geographical area. Ibid. 6 Following the issuance of public notice the EPA Regional Administrator is directed to provide at least a 30-day period during which interested persons may submit written views concerning the proposed action or may request that a hearing be held. § 125.32(b)(1). If the Regional Administrator "finds a significant degree of public interest in a proposed permit," he is directed to hold a public hearing on the proposed action at which interested parties may submit oral or written statements and data. § 125.34. Following a determination by the Regional Administrator to take a proposed permit action, he is directed to forward a copy of that determination to any person who has submitted written comments. If the determination is substantially changed from the initial proposed action, he must give public notice of that determination. In either event, his determination constitutes the final action of the EPA unless a timely request for an adjudicatory hearing is granted. § 125.35. 7 Any interested person, within 10 days following the date of the determination, may request an "adjudicatory hearing" or a "legal decision" with respect to the determination. § 125.36(b). A request for an adjudicatory hearing is to be granted by the Regional Administrator if the request "[s]ets forth material issues of fact relevant to the questions of whether a permit should be issued, denied or modified." § 125.36(c)(1)(ii). Issues of law, on the other hand, are not to be considered at an adjudicatory hearing. If a request for an adjudicatory hearing raises a legal issue, that issue is to be referred by the hearing officer to the EPA's Assistant Administrator for Enforcement and the General Counsel for resolution. If a request for an adjudicatory hearing raises only legal issues, a hearing will not be granted and the Regional Administrator will refer those issues to the aforementioned officers. § 125.36(m). III 8 The EPA and the CRWQCB first issued a joint permit to the city of Los Angeles for discharges of treated sewage from the Hyperion plant in November 1974. See App. 4. That permit, covering only the 1- and 5-mile outfalls, was issued following EPA publication of notice of its intent to issue a permit, an opportunity for the submission of written comments, and a public hearing. On August 18, 1975, the 1974 permit was rescinded by the federal and state authorities, and replaced with a permit covering all three outfalls. Id., at 3. The 1975 permit conditioned continued discharges from the Hyperion plant on compliance by the city with a schedule designed to achieve full secondary treatment of wastewater by October 1, 1979, and the gradual elimination of the discharge of sludge into the ocean over a 30-month period following "concept approval" of a plan for alternative disposal of the sludge. Id., at 17-19.6 9 In July 1976, the EPA notified Los Angeles that its 1975 NPDES permit would expire on February 1, 1977, and that a new permit would be needed if discharges were to continue beyond that date. Record 44. The city filed an application for a new permit on July 30. Id., at 45-80. Thereafter, in September 1976, the CRWQCB suggested to the EPA that the city's current permit might be extended for six months to take into account any effect of pending federal legislation that would modify the FWPCA's mandatory compliance dates for achievement of effluent limitations based upon secondary treatment. Id., at 119. See n. 4, supra. On January 24, 1977, after a public hearing, the EPA and the CRWQCB did extend the expiration date of the 1975 permit from February 1 to June 30, 1977, citing inadequate time to review the city's application for a new permit. App. 93.7 10 On April 26, 1977, the EPA advised the city that it again proposed to extend the expiration date of its NPDES permit for the Hyperion plant, this time from June 30, 1977, to December 17, 1979.8 All other terms and conditions of the permit were to remain unchanged. App. 115-120. Notice of the proposed action was published in the Los Angeles Times the following day. See L. A. Times, Apr. 27, 1977, part V, p. 2, cols. 6-7. That notice described the permit and its proposed modification, and advised persons wishing to comment upon objections or to appear at a public hearing to submit their comments or requests for a hearing to the regional office of the EPA within 30 days. Neither the city nor the respondent PLF, nor any other party, requested a hearing or filed comments on the proposed extension, and the EPA's Regional Administrator determined that public interest in the modification proposal was insufficient to warrant convening a public hearing. On May 23, at a public hearing, the CRWQCB officially extended the expiration date of the state permit for the Hyperion plant until December 17, 1979. App. 154. On June 2, 1977, the Regional Administrator of the EPA transmitted to the city his final determination to extend the time of expiration of the federal permit to the same 1979 date. Id., at 149. 11 On June 10, 1977, the PLF filed a Freedom of Information Act request with the regional enforcement division of the EPA, seeking information concerning the proposed extension of the expiration date of the Hyperion permit and, specifically, whether that extension had been approved. Id., at 157. When informed by telephone on June 13 that the EPA's final determination had been made on June 2, and that a request for an adjudicatory hearing could be accepted only if filed that day, see 40 CFR § 125.36(b)(1), respondent Kilroy, represented by PLF attorneys, filed such a request. Under EPA regulations, Kilroy's request for a hearing, if granted, would automatically stay the effectiveness of the permit modification pending disposition of the request. § 125.35(d)(2). 12 Respondent Kilroy's request for an adjudicatory hearing presented two issues that he wished to raise: 13 "1. Whether the requirements of the permit should be modified in that the project that is the subject of the compliance schedule set forth in NPDES permit CA010991 [the Hyperion permit] is being evaluated in an EIS by the EPA pursuant to the requirements of NEPA, the compliance schedule should not be mandated in an NPDES permit until the NEPA study is completed; and 14 "2. Whether the procedures used and the record developed were adequate [for the] issuance of an NPDES permit." App. 160. 15 Within 10 days of receiving Kilroy's request, the Regional Administrator responded by certified mail, stating his determination that the request did not set forth material issues of fact relevant to the question whether the permit should be extended. Thus, he concluded that Kilroy's request had not met the requirements of 40 CFR § 125.36(c)(1)(ii). The Regional Administrator did construe the request, however, as one raising issues of law relating to the appropriate interpretation to be given regulations that had been promulgated under the FWPCA. He therefore certified to the EPA's General Counsel three issues of law raised by the request. App. 166.9 Before the General Counsel's ruling on the certified issues of law was announced, respondents PLF and Kilroy, joined now by the city of Torrance, theretofore a stranger to the formal proceedings, filed a timely petition with the United States Court of Appeals for the Ninth Circuit seeking review of the Regional Administrator's action extending the expiration date of the Hyperion permit. A similar petition was filed by respondent city of Los Angeles. The petitions were consolidated for review. The Court of Appeals stayed the effect of the compliance schedules incorporated within the 1975 permit, pending final disposition of the consolidated cases. Even though the city's NPDES permit for the Hyperion plant, as modified by the EPA on June 2, 1977, stated that it expired December 17, 1979, the terms of the permit, other than those aspects of the compliance schedules requiring completion after January 1, 1977, have remained in effect, both through the Court of Appeals' stay and by operation of law.10 The case, therefore, clearly has not become moot. IV 16 The Court of Appeals remanded the matter to the Administrator for the holding of a "proper hearing." 586 F.2d 650, 660-661 (CA9 1978). After first determining that it had jurisdiction to hear respondents' petitions, and rejecting Los Angeles' argument that only the State of California had the authority to extend the Hyperion NPDES permit, id., at 654-657, the court held that the EPA had failed to provide the "opportunity for public hearing" required by § 402(a)(1) when it extended that permit. All parties agreed that the EPA had not in fact conducted a hearing prior to its extension of the permit on June 2, 1977. The EPA contended, however, that an opportunity for a hearing had been provided; it claimed that notice of the proposed extension had been published and that, when no one requested a hearing, it was proper under agency regulations for the Regional Administrator to conclude that there was insufficient public interest in the permit extension to necessitate a hearing. See 40 CFR § 125.34(a). The Court of Appeals rejected the EPA's contention, holding: 17 "The fact that no one requested a hearing prior to the decision is appropriately considered in this analysis, but it is not decisive. It must be shown that the material facts supporting the decision are not subject to dispute." 586 F.2d, at 658-659 (footnotes omitted). 18 The court also relied on language in Independent Bankers Assn. v. Board of Governors, 170 U.S.App.D.C. 278, 516 F.2d 1206 (1975), to the effect that certain "opportunity for hearing" requirements of the Bank Holding Company Act of 1956, as amended, 84 Stat. 1765, 12 U.S.C. § 1843(c)(8), required the Board of Governors of the Federal Reserve System to hold an evidentiary hearing unless it could "show that the parties could gain nothing thereby, because they disputed none of the material facts upon which the agency's decision could rest." 170 U.S.App.D.C., at 292, 516 F.2d, at 1220. 19 The Court of Appeals distinguished decisions of this Court in which it was held that a failure to request a hearing constituted a waiver of any right thereto under the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 742, 30 U.S.C. § 801 et seq., and that an agency may place the burden of demonstrating that a case presents disputed issues of material fact on the party challenging the agency's action. 586 F.2d, at 658-659, nn. 3 and 4 (discussing National Coal Operators' Assn. v. Kleppe, 423 U.S. 388, 397-398, 96 S.Ct. 809, 814, 46 L.Ed.2d 580 (1976); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620, 93 S.Ct. 2469, 2478, 37 L.Ed.2d 207 (1973); and United States v. Storer Broadcasting Co., 351 U.S. 192, 205, 76 S.Ct. 763, 771, 100 L.Ed. 1081 (1956)). 20 On the record before it, the Court of Appeals concluded that "the reasonableness of the EPA's compliance schedule [incorporated within the Hyperion NPDES permit] depends upon facts that may be disputed and with respect to which the record in this case is silent." 586 F.2d, at 659. With respect to such factors as the adequacy of the Palos Verdes or other landfill site, the ability of the city to acquire the capacity to transport sludge to that site within designated time limits, and the possible effect on navigable waters of land disposal of the sludge, the court stated: "[W]e can conclude unequivocally neither that the parties have no dispute about these matters nor that they do." Ibid. Thus, the court found itself unable to deny respondents an adjudicatory hearing on the ground that there was no dispute concerning the material facts upon which the EPA's decision to extend the permit had been based. 21 The Administrator of the EPA petitioned this Court for review of the question whether § 402(a)(1) requires the EPA to conduct an adjudicatory hearing before taking action on an NPDES permit issuance or modification where, after notice of the proposed action, no one requested a hearing before the action was taken and the only request filed subsequently raised no material issue of fact.11 We granted certiorari to review this important issue in a rapidly developing area of the law. 442 U.S. 928, 99 S.Ct. 2487, 61 L.Ed.2d 295 (1979). V A. 22 Petitioner's basic contentions are that the EPA was entitled to condition the availability of a public hearing on the extension of the Hyperion permit on the filing of a proper request, and that it similarly was entitled to condition an adjudicatory hearing following its extension decision on the identification of a disputed issue of material fact by an interested party. We agree with both contentions. 23 Initially, we must state our disagreement with respondents' characterization of the holding of the Court of Appeals. They argue that the court's decision was based on a finding that the EPA in this case did not comply with its own regulations governing public participation in the NPDES permit issuance process, rather than on a legal conclusion that the regulations are invalid. We conclude, on the contrary, that, although the court did not explicitly hold the regulations to be invalid, its decision renders them essentially meaningless. Rather than permitting the Regional Administrator to decide, in the first instance, whether there is sufficient public interest in a proposed issuance or modification of a permit to justify a public hearing, 40 CFR § 125.34(a), and to limit any adjudicatory hearing to the situation where an interested party raises a material issue of fact, § 125.36(c)(1)(ii), the Court of Appeals would require the agency to justify every failure to hold a hearing by proof that the material facts supporting its action "are not subject to dispute." 586 F.2d, at 659. This holding is contrary to this Court's approval in past decisions of agency rules, similar to those at issue here, that have required an applicant who seeks a hearing to meet a threshold burden of tendering evidence suggesting the need for a hearing. See, e. g., Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S., at 620-621, 93 S.Ct., at 2478-2479, and cases cited therein. 24 Moreover, it is important to note that the regulations described in Part II of this opinion, supra, were designed to implement the statutory command that permits be issued "after opportunity for public hearing." § 402(a)(1), 86 Stat. 880, 33 U.S.C. § 1342(a)(1) (emphasis supplied). In the past, this Court has held that a similar statutory requirement that an "opportunity" for a hearing be provided may be keyed to a request for a hearing. See National Coal Operators' Assn. v. Kleppe, 423 U.S., at 398-399, 96 S.Ct., at 814-815.12 And only recently the Court re-emphasized the fundamental administrative law principle that "the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). 25 Neither can we ignore the fact that under the standard applied by the Court of Appeals, the EPA would be required to hold hearings on most of the actions it takes with respect to NPDES permit issuances and modifications. Hearings would be required even in cases, such as this, in which the proposed action only extends a permit's expiration date without at all affecting the substantive conditions that had been considered during earlier hearings. The Administrator advises us that each year the EPA grants about 100 requests for adjudicatory hearings under the NPDES program, issues about 2,200 permits, and takes thousands of actions with respect to permits. Brief for Petitioner 34-35; see United States Steel Corp. v. Train, 556 F.2d 822, 834, n. 14 (CA7 1977). Affirmance of the Court of Appeals' rationale obviously would raise serious questions about the EPA's ability to administer the NPDES program. See Weinberger, 412 U.S., at 621, 93 S.Ct., at 2479; E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 132-133, 97 S.Ct. 965, 977, 51 L.Ed.2d 204 (1977). 26 We recognize the validity of respondents' contention that the legislative history of the FWPCA indicates a strong congressional desire that the public have input in decisions concerning the elimination of water pollution. The FWPCA itself recites: 27 "Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator . . . under this Act shall be provided for, encouraged, and assisted by the Administrator." § 101(e), 86 Stat. 817, 33 U.S.C. § 1251(e). 28 Passages in the FWPCA's legislative history indicate that this general policy of encouraging public participation is applicable to the administration of the NPDES permit program. See, e. g., 118 Cong.Rec. 37060 (1972) (remarks of Rep. Dingell during debate on override of the President's veto of the FWPCA). The Report of the Committee on Public Works accompanying the Senate bill emphasized that an essential element of the NPDES program is public participation, and that "[t]he public must have a genuine opportunity to speak on the issue of protection of its waters." S.Rep. No. 92-414, p. 72 (1971), U.S.Code Cong. & Admin.News 1972, p. 3668. 29 Nonetheless, we conclude that the regulations the EPA has promulgated to implement this congressional policy are fully consistent with the legislative purpose, and are valid. Respondents, in fact, do not contest seriously the proposition that the EPA's regulations are valid on their face; the thrust of their arguments before this Court has been that the EPA, in this instance, failed to apply its regulations consistently with their purpose. B 30 Having rejected the Court of Appeals' invalidation of the EPA's public participation regulations, we turn to the issues framed by respondents. First, PLF and Kilroy contend that the EPA's regulations required the Regional Administrator to hold a public hearing in this case because there was a "significant degree of public interest" in the extension of the Hyperion permit. See 40 CFR § 125.34(a). They also place substantial reliance upon those agency regulations that set general guidelines for public participation in water pollution control. During the period at issue here, one such regulation provided: 31 "Where the opportunity for public hearing is called for in the Act, and in other appropriate instances, a public hearing shall be held if the hearing official finds significant public interest (including the filing of requests or petitions for such hearing) or pertinent information to be gained. Instances of doubt should be resolved in favor of holding the hearing, or if necessary, of providing alternative opportunity for public participation." 40 CFR § 105.7(c). 32 Notwithstanding the orientation of these regulations toward the encouragement of public participation in the NPDES permit issuance process, our examination of the record leads us to reject respondents' contention that the EPA failed to comply with its regulations in this case. It is undisputed that the most controversial aspects of the Hyperion permit—the compliance schedule for secondary treatment, the "sludge-out" requirement, and the resultant requirement that the city develop an alternative method of sludge disposal—were all included within the 1975 permit. That permit was issued following EPA publication of advance notice of its tentative determination to revise the initial 1974 permit, and a hearing on the proposed revisions. None of the respondents objected to the issuance of the 1975 permit or requested an adjudicatory hearing. We agree with the position advanced by petitioner that respondents may not reopen consideration of substantive conditions contained within the 1975 permit through hearing requests relating to a proposed permit modification that did not even purport to affect those conditions. 33 The EPA's determination to modify the 1975 permit by extending its expiration date to December 17, 1979, was made following newspaper publication of the proposed action, including notice of an opportunity for submission of comments and hearing requests. Respondent Los Angeles received an individual notice of the EPA's tentative determination to extend the permit, and raised no objection. Respondents PLF and Kilroy, who argue that the EPA was aware of their interest in the Hyperion permit and their opposition to the Interim Sludge Disposal Project, could have received such individual notice if they had asked to be placed on the EPA's mailing list for notices of proposed agency actions within the pertinent geographical area. 40 CFR § 125.32(a)(3). They made no such request. Under the circumstances, we think it reasonable that the Regional Administrator decided to extend the expiration date of the permit without another public hearing, on the grounds that the public had not exhibited a significant degree of interest in the action under consideration, and that information pertinent to such a decision would not have been adduced if a hearing had been held. This simply is not a case in which doubt existed concerning the need for a hearing. 34 Second, respondents suggest that the EPA's provision of notice to the general public concerning the proposed permit extension was inadequate. The PLF and Kilroy argue that notice by newspaper publication was not adequate to apprise interested parties of the EPA's tentative determination, and was inconsistent with the policy of encouraging public participation that underlies the statute and regulations. Based on our conclusion that the EPA's regulations implementing the rather amorphous "opportunity for public hearing" requirement of § 402 are valid, we have no hesitancy in concluding that the form of notice provided in this case, fully consistent with the regulations, was not inadequate. 35 Los Angeles argues that it was not given adequate notice of the proposed extension of its permit because it was never informed that the EPA regarded the federal "sludge-out" compliance schedule contained in the 1975 permit not to have been modified by subsequent orders of the CRWQCB. See n. 6, supra. This argument was not addressed directly by the Court of Appeals. It would be appropriate, therefore, for this Court not to attempt to resolve it here, even if we had an adequate record to do so. More fundamentally, however, an additional reason dictates that the city's argument not be resolved in the context of this lawsuit at all. Los Angeles claims that the more lenient sludge-out schedule adopted by the CRWQCB in its order of May 24, 1976 (incorporating within the Hyperion permit a four-phase alternative sludge disposal plan to be completed by April 1, 1980) has been approved by the EPA with respect to the federal permit. The EPA presently takes the position that state modifications of the sludge-out plan, adopted pursuant to California law, did not alter the initial compliance schedule incorporated in the 1975 federal permit. The agency's position will be tested in United States v. City of Los Angeles, No. CV 77 3047 R (CD Cal., filed Aug. 12, 1977), an enforcement action brought by the Government under § 309 of the FWPCA, 86 Stat. 859, 33 U.S.C. § 1319 (1976 ed. and Supp. II). 36 The enforcement action seeks to enjoin the city from violating the conditions of its permit and to impose civil penalties against the city for past failures to comply with the permit's schedules. App. 181. It has been stayed by the Court of Appeals pending the outcome of this case. Brief for Petitioner 17, n. 13. The argument that the city raises here concerning its understanding of the compliance schedules will be resolved far more effectively in the Government's enforcement action than in the adjudicatory hearing the Court of Appeals would have awarded respondents in this case.13 Furthermore, even if the city had raised its argument in a public hearing on the proposed permit extension, that argument would have had little relevance to the EPA's final determination because the EPA's proposed action did not purport to change the substantive conditions that are the focus of the city's complaint. 37 Finally, respondents suggest that the EPA erred in not holding an adjudicatory hearing on the issues raised in respondent Kilroy's request. We agree with petitioner, however, who contends that Kilroy's request raised legal, rather than factual, issues, and who notes that respondents treated the request in that fashion in arguing the issues Kilroy presented before the EPA's General Counsel. See n. 9, supra. Even in their arguments before this Court, respondents have continued to raise factual issues that are relevant only to their contention that greater adverse effects on both the marine and land environment will result from the Interim Sludge Disposal Project than from the continued discharge of sludge into the ocean. If such issues had been raised in a timely request for an adjudicatory hearing, we agree with petitioner that the EPA could have taken the position that such issues, regardless of their merits, were not pertinent to a determination to extend the Hyperion permit's expiration date. That determination had no impact on the compliance schedule for "sludge-out" that already had long been in effect.14 C 38 In sum, we hold that the Court of Appeals erred in concluding that the EPA is required to hold a public hearing on every NPDES permit action it takes unless it can show that the material facts supporting its action "are not subject to dispute." We hold, rather, that the agency's regulations implementing the statutory requirement of "an opportunity for public hearing" under § 402 of the FWPCA are valid. Respondents have failed to demonstrate that those regulations were not applied properly in the context of this case. The Court of Appeals' judgment remanding the case to the agency for an adjudicatory hearing on the EPA's extension of the expiration date of Los Angeles' NPDES permit for its Hyperion Wastewater Treatment Plant is reversed. 39 It is so ordered. 1 Under applicable regulations, the Environmental Protection Agency defines "primary treatment" as "the first stage in wastewater treatment where substantially all floating or settleable solids, are removed by floatation and/or sedimentation." 40 CFR § 125.58(m) (1979). 2 The agency by its regulations describes "secondary treatment" as that treatment which will attain "the minimum level of effluent quality . . . in terms of . . . parameters [sic ]." These so-called "parameters" (but compare any dictionary's definition of this term) are specified levels of biochemical oxygen demand, suspended solids, and pH values. 40 CFR §§ 125.58(r) and 133.102 (1979). 3 In March 1973, the EPA and the California State Water Resources Control Board entered into an understanding that gave the State primary responsibility for administering the NPDES program in California, with the EPA retaining jurisdiction over discharges beyond the limits of the territorial sea, that is, more than three miles out from the coastline. EPA permits are thus required for the Hyperion plant's discharges through the 5- and 7-mile outfalls. The CRWQCB, acting pursuant to California's Porter-Cologne Act, Cal. Water Code Ann. § 13260 et seq. (West 1971), also requires a state permit for these outfalls. A general description of the original Federal Water Pollution Control Act passed in 1948, 62 Stat. 1155, the events that led to the 1972 Amendment, and the operation of the NPDES program, with particular emphasis on its implementation in California, is set forth in EPA v. State Water Resources Control Board, 426 U.S. 200, 202-209, 96 S.Ct. 2022, 2023-2026, 48 L.Ed.2d 578 (1976), and need not be repeated here. 4 Although the EPA has taken the position in this litigation that § 301(b)(1)(B) required the city to end the Hyperion plant's discharge of sludge into the ocean by July 1, 1977, the compliance schedule incorporated in the 1975 NPDES permit required the city to achieve total "sludge-out" by April 1978. The EPA asserts that this less stringent compliance schedule was necessitated by the practical inability of Los Angeles to meet the FWPCA's requirements. Reply Brief for Petitioner 8, n. 5. Congress subsequently has acted to permit the operator of a publicly owned treatment works, in certain circumstances, to request the EPA Administrator to extend the time allowed for achieving the limitations of § 301(b)(1)(B). Compliance must be attained, however, by July 1, 1983. Clean Water Act of 1977, Pub.L. 95-217, § 45, 91 Stat. 1584, 33 U.S.C. § 1311(i)(1) (1976 ed., Supp. II). The city has applied for an extension of the July 1, 1977, secondary-treatment deadline established by § 301(b)(1)(B), but that application has not yet been acted upon the EPA. Brief for Respondent City of Los Angeles 6, n. 5. 5 The EPA's public participation regulations were modified after the events central to this case took place. 44 Fed.Reg. 32854 (1979). Many features of the regulations that are at issue here, however, have been retained. See 40 CFR §§ 124.41-45, 124.61-64, 124.71-101, 124.111-127, and 124.131-135 (1979). All references in this opinion to the EPA's public participation regulations, unless otherwise designated, are to the 1978 compilation. 6 On December 1, 1975, the CRWQCB issued an order modifying the city's compliance schedule for alternative sludge disposal. That order announced that "concept approval" had been given on October 1, 1975, and fixed definite dates for achieving the elimination of sludge discharge into the ocean. Total "sludge-out" was to be achieved by April 1, 1978. App. 51. In subsequent orders, the CRWQCB found that the city had failed to meet several deadlines for the submission of plans and specifications for various phases of the sludge discharge elimination project. The CRWQCB then modified the relevant compliance dates, and extended the deadline for total "sludge-out" to April 1, 1980. Id., at 57. The city has taken the position in this litigation that the CRWQCB's extension of the deadline for total "sludge-out" has been incorporated within the compliance schedule of the Hyperion plant's federal permit as well. See infra, at 218-219. 7 In the meantime, a significant public controversy had developed concerning the EPA's approval of the city's alternative sludge disposal project. That project, to be funded by construction grants awarded under Title II of the FWPCA, 86 Stat. 833, 33 U.S.C. § 1281 et seq. (1976 ed. and Supp. II), has been referred to as the Hyperion Treatment Plant Interim Sludge Disposal Project. (The parties, commendably, have refrained from referring to this project as the HTPISDP, and so shall we.) The project called for the implementation of a process at the plant by which the digested sludge would be dewatered, formed into cakes, and hauled by truck to a sanitary landfill in Palos Verdes. An environmental impact appraisal developed by the EPA has estimated that when the trucking project is fully operational it will require 255 round trips per week over a distance of 42 miles. The city of Los Angeles and its Chamber of Commerce opposed the project, and objected when the EPA decided to fund it without preparing and evaluating an environmental impact statement (EIS), which they alleged to be required under the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq. App. 63. Respondent Pacific Legal Foundation (PLF) also objected. It requested the EPA to suspend those conditions on the city's NPDES permit that required it to cease ocean discharge of sewage sludge from the Hyperion plant. This request was based on PLF's interpretation of the requirements of the FWPCA with respect to the discharge of pollutants into the oceans. The PLF argued that § 403 of the FWPCA, 86 Stat. 883, 33 U.S.C. § 1343, required the EPA to perform a full environmental analysis of the effects on the ocean of the cessation of sludge discharge from the Hyperion plant, as well as the economic and social costs that would be involved in replacing ocean discharge with the landfill project. App. 84. The Regional Administrator of the EPA denied the PLF's request on January 31, 1977, taking the view that the FWPCA required all publicly owned treatment works to achieve effluent limitations based upon secondary treatment by July 1, 1977, and that this requirement mandated that the Hyperion plant cease the discharge of sewage sludge into the ocean. The Regional Administrator also noted that the conditions placed upon the 1975 permit had not been challenged during the public hearings that preceded its issuance, and that no interested party had requested an adjudicatory hearing concerning those conditions. He therefore refused to reopen consideration of the 1975 permit. Id., at 89. By the time of the Regional Administrator's response to the PLF, the city's permit already had been extended to June 30, 1977. The PLF then attempted, unsuccessfully, to prevent the EPA from funding the Interim Sludge Disposal Project without preparing an EIS on its decision to do so. See Pacific Legal Foundation v. Quarles, 440 F.Supp. 316 (CD Cal.1977), appeal docketed, No. 77-3844 (CA9). Subsequent to the District Court's decision in Quarles, however, the EPA voluntarily agreed to prepare an EIS on the project's funding. Brief for Petitioner 15, n. 12. Still another PLF lawsuit relating to the Hyperion permit and its "sludge-out" schedule is pending. In that action the PLF has sued officials of the EPA and the Department of the Interior claiming that those agencies have failed to carry out their statutory obligations under the Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. § 1531 et seq., in approving the alternative sludge disposal project. The PLF contends that the elimination of sludge discharge into the ocean will adversely affect the food chain that supports the existence of gray whales and brown pelicans, and that trucks going to and from the landfill site will kill the El Segundo butterfly. Brief for Petitioner 15, n. 12. The District Court granted the PLF's motion for partial summary judgment on its contention that the agencies had not fulfilled their statutory obligation, and has required the EPA to consider, during the course of the hearing ordered by the Court of Appeals in this case, the effects of the permit's "sludge-out" schedule on endangered species. Pacific Legal Foundation v. Andrus, Civ. No. C-78-3464-AAH(SX) (CD Cal. May 8, 1979), appeals docketed, Nos. 79-3472, 79-3566, 79-3661 (CA9). We, of course, express no view on the merits of these related PLF challenges to the Hyperion permit's compliance schedules. 8 The Administrator of the EPA has the authority to issue NPDES permits "for fixed terms not exceeding five years." §§ 402(a)(3), (b)(1)(B), 86 Stat. 880, 881, 33 U.S.C. §§ 1342(a)(3), (b)(1)(B) (1976 ed. and Supp. II). The respondents have not challenged the substantive authority of the Administrator to extend the expiration of a permit to a date within five years of its initial issuance, so long as such permit modification is implemented in accordance with applicable procedural requirements. 9 The following were the issues of law certified by the Regional Administrator to the General Counsel: "1. Must EPA conduct an informal public hearing prior to taking action to extend the expiration date of an NPDES permit where public notice of the proposed action was published more than 30 days in advance of the action? "2. Must a detailed factual record be developed prior to modification of an NPDES permit where the only modification made to the permit is the extension of the permit's expiration date? "3. May the expiration date of an NPDES permit be extended where a project covered by the compliance schedule is being evaluated by EPA in an Environmental Impact Statement for the purpose of determining whether a grant should be made to assist in the construction of the project?" App. 168. Following the parties' presentation of written briefs on these and related issues, the General Counsel ruled against respondent Kilroy. She concluded that the EPA has the authority to extend the expiration date of an NPDES permit through modification, and that an opportunity for a public hearing on such a modification must be provided. A hearing is to be held, however, only if the Regional Administrator finds a significant degree of public interest in the proposed modification. The General Counsel refrained from addressing the second certified issue because Kilroy's brief did not challenge specifically the adequacy of the record supporting the permit modification. Finally, she ruled that the EPA has the authority to extend the expiration date of a permit requiring the implementation of a project, even though funding for that project is undergoing evaluation in an EIS. The General Counsel relied on the District Court's decision in Pacific Legal Foundation v. Quarles, see n. 7, supra, as support for the latter ruling. App. 194. 10 The Court of Appeals in December 1977 stayed the compliance schedules incorporated within the Hyperion plant's NPDES permit pending proceedings on remand to the EPA. The effluent limitations that were in effect on January 1, 1977, however, as well as the permit's monitoring and reporting requirements, have remained operative pending final resolution of this dispute. 586 F.2d 650, 660-661 (CA9 1978). Because the EPA has not yet acted upon the city's application, filed July 30, 1976, for a new NPDES permit, the terms and conditions of the 1975 permit have remained in effect by operation of law, even though the permit expiration date has now passed. See 5 U.S.C. § 558(c) (a federal license with reference to an activity of a continuing nature does not expire until a timely application for renewal thereof has been finally determined by the pertinent agency); Tr. of Oral Arg. 4. 11 Respondents PLF and Kilroy suggest that the writ of certiorari should be dismissed as having been improvidently granted because petitioner has inserted issues in his brief on the merits that were not included within the question presented in his petition for certiorari. We decline the invitation to dismiss the writ. We note, however, that a decision in this case does not require us to resolve petitioner's contention, challenged by respondents as a "new issue," that Congress did not intend adjudicatory hearings under § 402 of the FWPCA to be governed by the formal requirements of an adjudication "on the record" set forth in the Administrative Procedure Act, 5 U.S.C. § 554 (1976 ed. and Supp. II). 12 To the extent the Court of Appeals' holding to the contrary relied upon the decision in Independent Bankers Assn. v. Board of Governors, 170 U.S.App.D.C. 278, 516 F.2d 1206 (1975), such reliance was misplaced. The passage from that opinion relied upon by the Court of Appeals itself demonstrates that the decision stands for the proposition that a party waives its right to an adjudicatory hearing where it fails to dispute the material facts upon which the agency's decision rests. See supra, at 212. 13 The Court of Appeals' stay of the compliance schedules incorporated within the 1975 permit did not remove the basis for the Government's enforcement action. That action challenges several alleged violations of the Hyperion NPDES permit that predated January 1, 1977. App. 183-187. See n. 10, supra. 14 Respondents' litigation strategy throughout the proceedings culminating in this opinion seems to have been based, at least in part, on a fear that the EPA may evade further public scrutiny of the compliance schedules incorporated within the 1975 NPDES permit by issuing continued extensions of that permit rather than acting upon the city's application for a new permit. See supra, at 205-206. If that potential for evasion ever did exist, it was a limited one. Under § 402(b)(1)(B) of the FWPCA, the EPA could have set the expiration date for the initial 1975 permit as late as August 1980, and the agency actions that culminated in this lawsuit would have been unnecessary. Now that the outside date for extensions of the 1975 permit is approaching, any additional extension for purposes of avoiding further hearings on the permit's compliance schedules would have little practical impact. We note, as well, that Los Angeles, under the Administrative Procedure Act, 5 U.S.C. § 706(1) (a reviewing court shall "compel agency action unlawfully withheld or unreasonably delayed") may obtain judicial review of prolonged agency inaction with respect to its application for a new permit.

78

445 U.S. 263 100 S.Ct. 1133 63 L.Ed.2d 382 William James RUMMEL, Petitioner,v.W. J. ESTELLE, Jr., Director, Texas Department of Corrections. No. 78-6386. Argued Jan. 7, 1980. Decided March 18, 1980. Syllabus Petitioner, who previously on two separate occasions had been convicted in Texas state courts and sentenced to prison for felonies (fraudulent use of a credit card to obtain $80 worth of goods or services, and passing a forged check in the amount of $28.36), was convicted of a third felony, obtaining $120.75 by false pretenses, and received a mandatory life sentence pursuant to Texas' recidivist statute. After the Texas appellate courts had rejected his direct appeal as well as his subsequent collateral attacks on his imprisonment, petitioner sought a writ of habeas corpus in Federal District Court, claiming that his life sentence was so disproportionate to the crimes he had committed as to constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The District Court rejected this claim, and the Court of Appeals affirmed, attaching particular importance to the probability that petitioner would be eligible for parole within 12 years of his initial confinement. Held: The mandatory life sentence imposed upon petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. Pp. 268-285. (a) Texas' interest here is not simply that of making criminal the unlawful acquisition of another person's property, but is in addition the interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are incapable of conforming to the norms of society as established by its criminal law. The Texas recidivist statute thus is nothing more than a societal decision that when a person, such as petitioner, commits yet another felony, he should be subjected to the serious penalty of life imprisonment, subject only to the State's judgment as to whether to grant him parole. Pp. 276-278. (b) While petitioner's inability to enforce any "right" to parole precludes treating his life sentence as equivalent to a 12 years' sentence, nevertheless, because parole is an established variation on imprisonment, a proper assessment of Texas' treatment of petitioner could not ignore the possibility that he will not actually be imprisoned for the rest of his life. Pp. 280-281. (c) Texas is entitled to make its own judgment as to the line dividing felony theft from petty larceny, subject only to those strictures of the Eighth Amendment that can be informed by objective factors. Moreover, given petitioner's record, Texas was not required to treat him in the same manner as it might treat him were this his first "petty property offense." Pp. 284-285. 587 F.2d 651, affirmed. Scott J. Atlas of Vinson & Elkins, Charles A. Wright, Houston, Tex., for petitioner. Douglas M. Becker, Austin, Tex., for respondent. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 Petitioner William James Rummel is presently serving a life sentence imposed by the State of Texas in 1973 under its "recidivist statute," formerly Art. 63 of its Penal Code, which provided that "[w]hoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary."1 On January 19, 1976, Rummel sought a writ of habeas corpus in the United States District Court for the Western District of Texas, arguing that life imprisonment was "grossly disproportionate" to the three felonies that formed the predicate for his sentence and that therefore the sentence violated the ban on cruel and unusual punishments of the Eighth and Fourteenth Amendments. The District Court and the United States Court of Appeals for the Fifth Circuit rejected Rummel's claim, finding no unconstitutional disproportionality. We granted certiorari, 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064, and now affirm. 2 * In 1964 the State of Texas charged Rummel with fraudulent use of a credit card to obtain $80 worth of goods or services.2 Because the amount in question was greater than $50, the charged offense was a felony punishable by a minimum of 2 years and a maximum of 10 years in the Texas Department of Corrections.3 Rummel eventually pleaded guilty to the charge and was sentenced to three years' confinement in a state penitentiary. 3 In 1969 the State of Texas charged Rummel with passing a forged check in the amount of $28.36, a crime punishable by imprisonment in a penitentiary for not less than two nor more than five years.4 Rummel pleaded guilty to this offense and was sentenced to four years' imprisonment. 4 In 1973 Rummel was charged with obtaining $120.75 by false pretenses.5 Because the amount obtained was greater than $50, the charged offense was designated "felony theft," which, by itself, was punishable by confinement in a penitentiary for not less than two nor more than 10 years.6 The prosecution chose, however, to proceed against Rummel under Texas' recidivist statute, and cited in the indictment his 1964 and 1969 convictions as requiring imposition of a life sentence if Rummel were convicted of the charged offense. A jury convicted Rummel of felony theft and also found as true the allegation that he had been convicted of two prior felonies. As a result, on April 26, 1973, the trial court imposed upon Rummel the life sentence mandated by Art. 63. 5 The Texas appellate courts rejected Rummel's direct appeal as well as his subsequent collateral attacks on his imprisonment.7 Rummel then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Texas. In that petition, he claimed, inter alia, that his life sentence was so disproportionate to the crimes he had committed as to constitute cruel and unusual punishment. The District Court rejected this claim, first noting that this Court had already rejected a constitutional attack upon Art. 63, see Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), and then crediting an argument by respondent that Rummel's sentence could not be viewed as life imprisonment because he would be eligible for parole in approximately 12 years. 6 A divided panel of the Court of Appeals reversed. 568 F.2d 1193 (CA5 1978). The majority relied upon this Court's decision in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), and a decision of the United States Court of Appeals for the Fourth Circuit, Hart v. Coiner, 483 F.2d 136 (1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974), in holding that Rummel's life sentence was "so grossly disproportionate" to his offenses as to constitute cruel and unusual punishment. 568 F.2d, at 1200. The dissenting judge argued that "[n]o neutral principle of adjudication permits a federal court to hold that in a given situation individual crimes are too trivial in relation to the punishment imposed." Id., at 1201-1202. 7 Rummel's case was reheard by the Court of Appeals sitting en banc. That court vacated the panel opinion and affirmed the District Court's denial of habeas corpus relief on Rummel's Eighth Amendment claim. 587 F.2d 651 (CA5 1978). Of particular importance to the majority of the Court of Appeals en banc was the probability that Rummel would be eligible for parole within 12 years of his initial confinement. Six members of the Court of Appeals dissented, arguing that Rummel had no enforceable right to parole and that Weems and Hart compelled a finding that Rummel's life sentence was unconstitutional. II 8 Initially, we believe it important to set forth two propositions that Rummel does not contest. First, Rummel does not challenge the constitutionality of Texas' recidivist statute as a general proposition. In Spencer v. Texas, supra, this Court upheld the very statute employed here, noting in the course of its opinion that similar statutes had been sustained against contentions that they violated "constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities." 385 U.S., at 560, 87 S.Ct., at 651. Here, Rummel attacks only the result of applying this concededly valid statute to the facts of his case. 9 Second, Rummel does not challenge Texas' authority to punish each of his offenses as felonies, that is, by imprisoning him in a state penitentiary.8 Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (statute making it a crime to be addicted to the use of narcotics violates the Eighth and Fourteenth Amendments). See also Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977) (Eighth Amendment "imposes substantive limits on what can be made criminal and punished as such . . ."). Under Texas law Rummel concededly could have received sentences totaling 25 years in prison for what he refers to as his "petty property offenses." Indeed, when Rummel obtained $120.75 by false pretenses he committed a crime punishable as a felony in at least 35 States and the District of Columbia.9 Similarly, a large number of States authorized significant terms of imprisonment for each of Rummel's other offenses at the times he committed them.10 Rummel's challenge thus focuses only on the State's authority to impose a sentence of life imprisonment, as opposed to a substantial term of years, for his third felony. 10 This Court has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. See, e. g., Weems v. United States, 217 U.S., at 367, 30 S.Ct., at 549; Ingraham v. Wright, 430 U.S., at 667, 97 S.Ct., at 1410 (dictum); Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958) (plurality opinion). In recent years this proposition has appeared most frequently in opinions dealing with the death penalty. See, e. g., Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.); Furman v. Georgia, 408 U.S. 238, 458, 92 S.Ct. 2726, 2838, 33 L.Ed.2d 346 (1972) (POWELL, J., dissenting). Rummel cites these latter opinions dealing with capital punishment as compelling the conclusion that his sentence is disproportionate to his offenses. But as Mr. Justice STEWART noted in Furman : 11 "The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity." Id., at 306, 92 S.Ct., at 2760. 12 This theme, the unique nature of the death penalty for purposes of Eighth Amendment analysis, has been repeated time and time again in our opinions. See, e. g., Furman v. Georgia, supra, at 287, 289, 92 S.Ct., at 2751, 2752 (BRENNAN, J., concurring); Gregg v. Georgia, supra, 428 U.S. at 187, 96 S.Ct., at 2931 (opinion of STEWART, POWELL, and STEVENS, JJ.); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976); Coker v. Georgia, supra, 433 U.S., at 598, 97 S.Ct., at 2869 (plurality opinion). Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel. 13 Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare. In Weems v. United States, supra, a case coming to this Court from the Supreme Court of the Philippine Islands, petitioner successfully attacked the imposition of a punishment known as "cadena temporal " for the crime of falsifying a public record. Although the Court in Weems invalidated the sentence after weighing "the mischief and the remedy," 217 U.S., at 379, 30 S.Ct., at 554, its finding of disproportionality cannot be wrenched from the extreme facts of that case. As for the "mischief," Weems was convicted of falsifying a public document, a crime apparently complete upon the knowing entry of a single item of false information in a public record, "though there be no one injured, though there be no fraud or purpose of it, no gain or desire of it." Id., at 365, 30 S.Ct., at 548. The mandatory "remedy" for this offense was cadena temporal, a punishment described graphically by the Court: 14 "Its minimum degree is confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council. These parts of his penalty endure for the term of imprisonment. From other parts there is no intermission. His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the 'authority immediately in charge of his surveillance,' and without permission in writing." Id., at 366, 30 S.Ct., at 549. 15 Although Rummel argues that the length of Weems' imprisonment was, by itself, a basis for the Court's decision, the Court's opinion does not support such a simple conclusion. The opinion consistently referred jointly to the length of imprisonment and its "accessories" or "accompaniments." See id., at 366, 372, 377, 380, 30 S.Ct., at 548, 551, 553, 554. Indeed, the Court expressly rejected an argument made on behalf of the United States that "the provision for imprisonment in the Philippine Code is separable from the accessory punishment, and that the latter may be declared illegal, leaving the former to have application." According to the Court, "[t]he Philippine Code unites the penalties of cadena temporal, principal and accessory, and it is not in our power to separate them . . .." Id., at 382, 30 S.Ct., at 555. Thus, we do not believe that Weems can be applied without regard to its peculiar facts: the triviality of the charged offense, the impressive length of the minimum term of imprisonment, and the extraordinary nature of the "accessories" included within the punishment of cadena temporal. 16 Given the unique nature of the punishments considered in Weems and in the death penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.11 Only six years after Weems, for example, Mr. Justice Holmes wrote for a unanimous Court in brushing aside a proportionality challenge to concurrent sentences of five years' imprisonment and cumulative fines of $1,000 on each of seven counts of mail fraud. See Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916). According to the Court, there was simply "no ground for declaring the punishment unconstitutional." Id., at 394, 36 S.Ct., at 368. 17 Such reluctance to review legislatively mandated terms of imprisonment is implicit in our more recent decisions as well. As was noted by Mr. Justice WHITE, writing for the plurality in Coker v. Georgia, supra, 433 U.S., at 592, 97 S.Ct., at 2866, our Court's "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent." Since Coker involved the imposition of capital punishment for the rape of an adult female, this Court could draw a "bright line" between the punishment of death and the various other permutations and commutations of punishments short of that ultimate sanction. For the reasons stated by Mr. Justice STEWART in Furman, see supra, at 272, this line was considerably clearer than would be any constitutional distinction between one term of years and a shorter or longer term of years. 18 Similarly, in Weems the Court could differentiate in an objective fashion between the highly unusual cadena temporal and more traditional forms of imprisonment imposed under the Anglo-Saxon system. But a more extensive intrusion into the basic line-drawing process that is pre-eminently the province of the legislature when it makes an act criminal would be difficult to square with the view expressed in Coker that the Court's Eighth Amendment judgments should neither be nor appear to be merely the subjective views of individual Justices. 19 In an attempt to provide us with objective criteria against which we might measure the proportionality of his life sentence, Rummel points to certain characteristics of his offenses that allegedly render them "petty." He cites, for example, the absence of violence in his crimes. But the presence or absence of violence does not always affect the strength of society's interest in deterring a particular crime or in punishing a particular criminal. A high official in a large corporation can commit undeniably serious crimes in the area of antitrust, bribery, or clean air or water standards without coming close to engaging in any "violent" or short-term "life-threatening" behavior. Additionally, Rummel cites the "small" amount of money taken in each of his crimes. But to recognize that the State of Texas could have imprisoned Rummel for life if he had stolen $5,000, $50,000, or $500,000, rather than the $120.75 that a jury convicted him of stealing, is virtually to concede that the lines to be drawn are indeed "subjective," and therefore properly within the province of legislatures, not courts. Moreover, if Rummel had attempted to defraud his victim of $50,000, but had failed, no money whatsoever would have changed hands; yet Rummel would be no less blameworthy, only less skillful, than if he had succeeded. 20 In this case, however, we need not decide whether Texas could impose a life sentence upon Rummel merely for obtaining $120.75 by false pretenses. Had Rummel only committed that crime, under the law enacted by the Texas Legislature he could have been imprisoned for no more than 10 years. In fact, at the time that he obtained the $120.75 by false pretenses, he already had committed and had been imprisoned for two other felonies, crimes that Texas and other States felt were serious enough to warrant significant terms of imprisonment even in the absence of prior offenses. Thus the interest of the State of Texas here is not simply that of making criminal the unlawful acquisition of another person's property; it is in addition the interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law. By conceding the validity of recidivist statutes generally, Rummel himself concedes that the State of Texas, or any other State, has a valid interest in so dealing with that class of persons. 21 Nearly 70 years ago, and only 2 years after Weems, this Court rejected an Eighth Amendment claim that seems factually indistinguishable from that advanced by Rummel in the present case. In Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912), this Court considered the case of an apparently incorrigible horse-thief who was sentenced to life imprisonment under West Virginia's recidivist statute. In 1898 Graham had been convicted of stealing "one bay mare" valued at $50; in 1901 he had been convicted of "feloniously and burglariously" entering a stable in order to steal "one brown horse, named Harry, of the value of $100"; finally, in 1907 he was convicted of stealing "one red roan horse" valued at $75 and various tack and accessories valued at $85.12 Upon conviction of this last crime, Graham received the life sentence mandated by West Virginia's recidivist statute. This Court did not tarry long on Graham's Eighth Amendment claim,13 noting only that it could not be maintained "that cruel and unusual punishment [had] been inflicted." Id., at 631, 32 S.Ct., at 588.14 22 Undaunted by earlier cases like Graham and Badders, Rummel attempts to ground his proportionality attack on an alleged "nationwide" trend away from mandatory life sentences and toward "lighter, discretionary sentences." Brief for Petitioner, 43-44. According to Rummel, "[n]o jurisdiction in the United States or the Free World punishes habitual offenders as harshly as Texas." Id., at 39. In support of this proposition, Rummel offers detailed charts and tables documenting the history of recidivist statutes in the United States since 1776. 23 Before evaluating this evidence, we believe it important to examine the exact operation of Art. 63 as interpreted by the Texas courts. In order to qualify for a mandatory life sentence under that statute, Rummel had to satisfy a number of requirements. First, he had to be convicted of a felony and actually sentenced to prison.15 Second, at some time subsequent to his first conviction, Rummel had to be convicted of another felony and again sentenced to imprisonment.16 Finally, after having been sent to prison a second time, Rummel had to be convicted of a third felony. Thus, under Art. 63, a three-time felon receives a mandatory life sentence, with possibility of parole, only if commission and conviction of each succeeding felony followed conviction for the preceding one, and only if each prior conviction was followed by actual imprisonment. Given this necessary sequence, a recidivist must twice demonstrate that conviction and actual imprisonment do not deter him from returning to crime once he is released. One in Rummel's position has been both graphically informed of the consequences of lawlessness and given an opportunity to reform, all to no avail. Article 63 thus is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State's judgment as to whether to grant him parole.17 24 In comparing this recidivist program with those presently employed in other States, Rummel creates a complex hierarchy of statutes and places Texas' recidivist scheme alone on the top rung. This isolation is not entirely convincing. Both West Virginia and Washington, for example, impose mandatory life sentences upon the commission of a third felony.18 Rummel would distinguish those States from Texas because the Supreme Court of Washington and the United States Court of Appeals for the Fourth Circuit, which includes West Virginia, have indicated a willingness to review the proportionality of such sentences under the Eighth Amendment. See State v. Lee, 87 Wash.2d 932, 937, n. 4, 558 P.2d 236, 240, n. 4 (1976) (dictum); Hart v. Coiner, 483 F.2d 136 (CA4 1973). But this Court must ultimately decide the meaning of the Eighth Amendment. If we disagree with the decisions of the Supreme Court of Washington and the Court of Appeals for the Fourth Circuit on this point, Washington and West Virginia are for practical purposes indistinguishable from Texas. If we agree with those courts, then of course sentences imposed in Texas, as well as in Washington and West Virginia, are subject to a review for proportionality under the Eighth Amendment. But in either case, the legislative judgment as to punishment in Washington and West Virginia has been the same as that in Texas. 25 Rummel's charts and tables do appear to indicate that he might have received more lenient treatment in almost any State other than Texas, West Virginia, or Washington. The distinctions, however, are subtle rather than gross. A number of States impose a mandatory life sentence upon conviction of four felonies rather than three.19 Other States require one or more of the felonies to be "violent" to support a life sentence.20 Still other States leave the imposition of a life sentence after three felonies within the discretion of a judge or jury.21 It is one thing for a court to compare those States that impose capital punishment for a specific offense with those States that do not. See Coker v. Georgia, 433 U.S., at 595-596, 97 S.Ct., at 2867-68. It is quite another thing for a court to attempt to evaluate the position of any particular recidivist scheme within Rummel's complex matrix.22 26 Nor do Rummel's extensive charts even begin to reflect the complexity of the comparison he asks this Court to make. Texas, we are told, has a relatively liberal policy of granting "good time" credits to its prisoners, a policy that historically has allowed a prisoner serving a life sentence to become eligible for parole in as little as 12 years. See Brief for Respondent 16-17. We agree with Rummel that his inability to enforce any "right" to parole precludes us from treating his life sentence as if it were equivalent to a sentence of 12 years. Nevertheless, because parole is "an established variation on imprisonment of convicted criminals," Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484 (1972), a proper assessment of Texas' treatment of Rummel could hardly ignore the possibility that he will not actually be imprisoned for the rest of his life. If nothing else, the possibility of parole, however slim, serves to distinguish Rummel from a person sentenced under a recidivist statute like Mississippi's, which provides for a sentence of life without parole upon conviction of three felonies including at least one violent felony. See Miss.Code Ann. § 99-19-83 (Supp.1979). 27 Another variable complicating the calculus is the role of prosecutorial discretion in any recidivist scheme. It is a matter of common knowledge that prosecutors often exercise their discretion in invoking recidivist statutes or in plea bargaining so as to screen out truly "petty" offenders who fall within the literal terms of such statutes. See Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962) (upholding West Virginia's recidivist scheme over contention that it placed unconstitutional discretion in hands of prosecutor). Indeed, in the present case the State of Texas has asked this Court, in the event that we find Rummel's sentence unconstitutionally disproportionate, to remand the case to the sentencing court so that the State might introduce Rummel's entire criminal record. If, on a remand, the sentencing court were to discover that Rummel had been convicted of one or more felonies in addition to those pleaded in the original indictment, one reasonably might wonder whether that court could then sentence Rummel to life imprisonment even though his recidivist status based on only three felonies had been held to be a "cruel and unusual" punishment. 28 We offer these additional considerations not as inherent flaws in Rummel's suggested interjurisdictional analysis but as illustrations of the complexities confronting any court that would attempt such a comparison. Even were we to assume that the statute employed against Rummel was the most stringent found in the 50 States, that severity hardly would render Rummel's punishment "grossly disproportionate" to his offenses or to the punishment he would have received in the other States. As Mr. Justice Holmes noted in his dissenting opinion in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905), our Constitution "is made for people of fundamentally differing views . . .." Until quite recently, Arizona punished as a felony the theft of any "neat or horned animal," regardless of its value;23 California considers the theft of "avocados, olives, citrus or deciduous fruits, nuts and artichokes" particularly reprehensible.24 In one State theft of $100 will earn the offender a fine or a short term in jail;25 in another State it could earn him a sentence of 10 years' imprisonment.26 Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State.27 29 Perhaps, as asserted in Weems, "time works changes" upon the Eighth Amendment, bringing into existence "new conditions and purposes." 217 U.S., at 373, 30 S.Ct., at 551. We all, of course, would like to think that we are "moving down the road toward human decency." Furman v. Georgia, 408 U.S., at 410, 92 S.Ct., at 2814 (BLACKMUN, J., dissenting). Within the confines of this judicial proceeding, however, we have no way of knowing in which direction that road lies. Penologists themselves have been unable to agree whether sentences should be light or heavy,28 discretionary or determinate.29 This uncertainty reinforces our conviction that any "nationwide trend" toward lighter, discretionary sentences must find its source and its sustaining force in the legislatures, not in the federal courts. III 30 The most casual review of the various criminal justice systems now in force in the 50 States of the Union shows that the line dividing felony theft from petty larceny, a line usually based on the value of the property taken, varies markedly from one State to another. We believe that Texas is entitled to make its own judgment as to where such lines lie, subject only to those strictures of the Eighth Amendment that can be informed by objective factors. See Coker v. Georgia, 433 U.S., at 592, 97 S.Ct., at 2866. Moreover, given Rummel's record, Texas was not required to treat him in the same manner as it might treat him were this his first "petty property offense." Having twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State. 31 The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction. 32 We therefore hold that the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. The judgment of the Court of Appeals is 33 Affirmed. 34 Mr. Justice STEWART, concurring. 35 I am moved to repeat the substance of what I had to say on another occasion about the recidivist legislation of Texas: 36 "If the Constitution gave me a roving commission to impose upon the criminal courts of Texas my own notions of enlightened policy, I would not join the Court's opinion. For it is clear to me that the recidivist procedures adopted in recent years by many other States . . . are far superior to those utilized [here]. But the question for decision is not whether we applaud or even whether we personally approve the procedures followed in [this case]. The question is whether those procedures fall below the minimum level the [Constitution] will tolerate. Upon that question I am constrained to join the opinion and judgment of the Court." Spencer v. Texas, 385 U.S. 554, 569, 87 S.Ct. 648, 656, 17 L.Ed.2d 606 (concurring opinion). 37 Mr. Justice POWELL, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting. 38 The question in this case is whether petitioner was subjected to cruel and unusual punishment in contravention of the Eighth Amendment, made applicable to the States by the Fourteenth Amendment, when he received a mandatory life sentence upon his conviction for a third property-related felony. Today, the Court holds that petitioner has not been punished unconstitutionally. I dissent. 39 * The facts are simply stated. In 1964, petitioner was convicted for the felony of presenting a credit card with intent to defraud another of approximately $80. In 1969, he was convicted for the felony of passing a forged check with a face value of $28.36. In 1973, petitioner accepted payment in return for his promise to repair an air conditioner. The air conditioner was never repaired, and petitioner was indicted for the felony offense of obtaining $120.75 under false pretenses. He was also charged with being a habitual offender. The Texas habitual offender statute provides a mandatory life sentence for any person convicted of three felonies. See Tex.Penal Code Ann., Art. 63 (Vernon 1925), as amended and recodified, Tex.Penal Code § 12.42(d) (1974). Petitioner was convicted of the third felony and, after the State proved the existence of the two earlier felony convictions, was sentenced to mandatory life imprisonment. 40 After exhausting state remedies, petitioner sought a writ of habeas corpus in the Federal District Court for the Western District of Texas. Petitioner contended that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment. Petitioner did not suggest that the method of punishment—life imprisonment—was constitutionally invalid. Rather, he argued that the punishment was unconstitutional because it was disproportionate to the severity of the three felonies. A panel of the Court of Appeals for the Fifth Circuit accepted petitioner's view, 568 F.2d 1193 (1978), but the court en banc vacated that decision and affirmed the District Court's denial of the writ of habeas corpus. 587 F.2d 651 (1979). 41 This Court today affirms the Fifth Circuit's decision. I dissent because I believe that (i) the penalty for a noncapital offense may be unconstitutionally disproportionate, (ii) the possibility of parole should not be considered in assessing the nature of the punishment, (iii) a mandatory life sentence is grossly disproportionate as applied to petitioner, and (iv) the conclusion that this petitioner has suffered a violation of his Eighth Amendment rights is compatible with principles of judicial restraint and federalism. II A. 42 The Eighth Amendment prohibits "cruel and unusual punishments." That language came from Art. I, § 9, of the Virginia Declaration of Rights, which provided that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The words of the Virginia Declaration were taken from the English Bill of Rights of 1689. See Granucci, 'Nor Cruel and Unusual Punishments Inflicted: The Original Meaning,': 57 Calif.L.Rev. 839, 840 (1969). 43 Although the legislative history of the Eighth Amendment is not extensive, we can be certain that the Framers intended to proscribe inhumane methods of punishment. See Furman v. Georgia, 408 U.S. 238, 319-322, 92 S.Ct. 2726, 2767, 2768, 33 L.Ed.2d 346 (1972) (MARSHALL, J., concurring); Granucci, supra, at 839-842. When the Virginia delegates met to consider the Federal Constitution, for example, Patrick Henry specifically noted the absence of the provisions contained within the Virginia Declaration. Henry feared that without a "cruel and unusual punishments" clause, Congress "may introduce the practice . . . of torturing, to extort a confession of the crime."1 Indeed, during debate in the First Congress on the adoption of the Bill of Rights, one Congressman objected to adoption of the Eighth Amendment precisely because "villains often deserve whipping, and perhaps having their ears cut off."2 44 In two 19th-century cases, the Court considered constitutional challenges to forms of capital punishment. In Wilkerson v. Utah, 99 U.S. 130, 135, 25 L.Ed. 345 (1879), the Court held that death by shooting did not constitute cruel and unusual punishment. The Court emphasized, however, that torturous methods of execution, such as burning a live offender, would violate the Eighth Amendment. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), provided the Court with its second opportunity to review methods of carrying out a death penalty. That case involved a constitutional challenge to New York's use of electrocution. Although the Court did not apply the Eighth Amendment to state action, it did conclude that electrocution would not deprive the petitioner of due process of law. See also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947). B 45 The scope of the Cruel and Unusual Punishments Clause extends not only to barbarous methods of punishment, but also to punishments that are grossly disproportionate. Disproportionality analysis measures the relationship between the nature and number of offenses committed and the severity of the punishment inflicted upon the offender. The inquiry focuses on whether, a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal. A statute that levied a mandatory life sentence for overtime parking might well deter vehicular lawlessness, but it would offend our felt sense of justice. The Court concedes today that the principle of disproportionality plays a role in the review of sentences imposing the death penalty, but suggests that the principle may be less applicable when a noncapital sense is challenged. Such a limitation finds no support in the history of Eighth Amendment jurisprudence. 46 The principle of disproportionality is rooted deeply in English constitutional law. The Magna Carta of 1215 insured that "[a] free man shall not be [fined] for a trivial offence, except in accordance with the degree of the offence; and for a serious offence he shall be [fined] according to its gravity."3 By 1400, the English common law had embraced the principle, not always followed in practice, that punishment should not be excessive either in severity or length.4 One commentator's survey of English law demonstrates that the "cruel and unusual punishments" clause of the English Bill of Rights of 1689 "was first, an objection to the imposition of punishments which were unauthorized by statute and outside the jurisdiction of the sentencing court, and second, a reiteration of the English policy against disproportionate penalties." Granucci, supra, at 860. See Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.). 47 In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), a public official convicted for falsifying a public record claimed that he suffered cruel and unusual punishment when he was sentenced to serve 15 years' imprisonment in hard labor with chains.5 The sentence also subjected Weems to loss of civil rights and perpetual surveillance after his release. This Court agreed that the punishment was cruel and unusual. The Court was attentive to the methods of the punishment, id., at 363-364, 30 S.Ct., at 547-548, but its conclusion did not rest solely upon the nature of punishment. The Court relied explicitly upon the relationship between the crime committed and the punishment imposed: 48 "Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense." Id., at 366-367, 30 S.Ct., at 549. 49 In both capital and noncapital cases this Court has recognized that the decision in Weems v. United States "proscribes punishment grossly disproportionate to the severity of the crime." Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977); see Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978); Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (opinion of WHITE, J.); Gregg v. Georgia, supra, 428 U.S., at 171, 96 S.Ct., at 2924 (opinion of STEWART, POWELL and STEVENS, JJ.); Furman v. Georgia, 408 U.S., at 325, 92 S.Ct., at 2770 (MARSHALL, J., concurring).6 50 In order to resolve the constitutional issue, the Weems Court measured the relationship between the punishment and the offense. The Court noted that Weems had been punished more severely than persons in the same jurisdiction who committed more serious crimes, or persons who committed a similar crime in other American jurisdictions. 217 U.S., at 381-382, 30 S.Ct., at 554-555.7 51 Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962), established that the Cruel and Unusual Punishments Clause applies to the States through the operation of the Fourteenth Amendment. The Court held that imprisonment for the crime of being a drug addict was cruel and unusual. The Court based its holding not upon the method of punishment, but on the nature of the "crime." Because drug addiction is an illness which may be contracted involuntarily, the Court said that "imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." Ibid. 52 In Furman v. Georgia, supra, the Court held that the death penalty may constitute cruel and unusual punishment in some circumstances. The special relevance of Furman to this case lies in the general acceptance by Members of the Court of two basic principles. First, the Eighth Amendment prohibits grossly excessive punishment.8 Second, the scope of the Eighth Amendment is to be measured by "evolving standards of decency." See Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (opinion of Warren, C. J.).9 53 In Coker v. Georgia, supra, this Court held that rape of an adult woman may not be punished by the death penalty. The plurality opinion of Mr. Justice WHITE stated that a punishment is unconstitutionally excessive "if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." Id., at 592, 97 S.Ct., at 2866.10 The plurality concluded that the death penalty was a grossly disproportionate punishment for the crime of rape. The plurality recognized that "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent." Ibid. To this end, the plurality examined the nature of the crime and attitudes of state legislatures and sentencing juries toward use of the death penalty in rape cases. In a separate opinion, I concurred in the plurality's reasoning that death ordinarily is disproportionate punishment for the crime of raping an adult woman. Id., at 601, 97 S.Ct., at 2870. Nothing in the Coker analysis suggests that principles of disproportionality are applicable only cases. Indeed, the questions posed in Coker and this case are the same: whether a punishment that can be imposed for one offense is grossly disproportionate when imposed for another. 54 In sum, a few basic principles emerge from the history of the Eighth Amendment. Both barbarous forms of punishment and grossly excessive punishments are cruel and unusual. A sentence may be excessive if it serves no acceptable social purpose, or is grossly disproportionate to the seriousness of the crime. The principle of disproportionality has been acknowledged to apply to both capital and noncapital sentences. III 55 Under Texas law, petitioner has been sentenced to a mandatory life sentence. Even so, the Court of Appeals rejected the petitioner's Eighth Amendment claim primarily because it concluded that the petitioner probably would not serve a life sentence. 587 F.2d, at 659 (en banc). In view of good-time credits available under the Texas system, the court concluded that Rummel might serve no more than 10 years. Ibid. Thus, the Court of Appeals equated petitioner's sentence to 10 years of imprisonment without the possibility of parole. Id., at 660. 56 It is true that imposition in Texas of a mandatory life sentence does not necessarily mean that petitioner will spend the rest of his life behind prison walls. If petitioner attains sufficient good-time credits, he may be eligible for parole within 10 or 12 years after he begins serving his life sentence. But petitioner will have no right to early release; he will merely be eligible for parole. And parole is simply an act of executive grace. 57 Last Term in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979), we held that a criminal conviction extinguishes whatever liberty interest a prisoner has in securing freedom before the end of his lawful sentence. The Court stated unequivocally that a convicted person has "no constitutional or inherent right . . . to be conditionally released before the expiration of a valid sentence." Id., at 7, 99 S.Ct., at 2104. Of course, a State may create legitimate expectations that are entitled to procedural protection under the Due Process Clause of the Fourteenth Amendment, but Texas has not chosen to create a cognizable interest in parole. The Court of Appeals for the Fifth Circuit has held that a Texas prisoner has no constitutionally enforceable interest in being freed before the expiration of his sentence. See Johnson v. Wells, 566 F.2d 1016, 1018 (1978); Craft v. Texas Board of Pardons and Paroles, 550 F.2d 1054, 1056 (1977). 58 A holding that the possibility of parole discounts a prisoner's sentence for the purposes of the Eighth Amendment would be cruelly ironic. The combined effect of our holdings under the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment would allow a State to defend an Eighth Amendment claim by contending that parole is probable even though the prisoner cannot enforce that expectation. Such an approach is inconsistent with the Eighth Amendment. The Court has never before failed to examine a prisoner's Eighth Amendment claim because of the speculation that he might be pardoned before the sentence was carried out. 59 Recent events in Texas demonstrate that parole remains a matter of executive grace. In June 1979, the Governor of Texas refused to grant parole to 79% of the state prisoners whom the parole board recommended for release.11 The State's chief executive acted well within his rights in declining to follow the board, but his actions emphasize the speculative nature of the Court of Appeals' reasoning. As this case comes to us, petitioner has been deprived by operation of state law of his right to freedom from imprisonment for the rest of his life. We should judge the case accordingly. IV 60 The Eighth Amendment commands this Court to enforce the constitutional limitation of the Cruel and Unusual Punishments Clause. In discharging this responsibility, we should minimize the risk of constitutionalizing the personal predilictions of federal judges by relying upon certain objective factors. Among these are (i) the nature of the offense, see Coker v. Georgia, 433 U.S., at 598, 97 S.Ct., at 2869; id., at 603, 97 S.Ct., at 2871 (POWELL, J., concurring in judgment in part and dissenting in part); (ii) the sentence imposed for commission of the same crime in other jurisdictions, see id., at 593-594, 97 S.Ct., at 2866-67; Gregg v. Georgia, 428 U.S., at 179-180, 96 S.Ct., at 2928; Weems v. United States, 217 U.S., at 380, 30 S.Ct., at 554; cf. Trop v. Dulles, 356 U.S., at 102-103, 78 S.Ct., at 598-99; and (iii) the sentence imposed upon other criminals in the same jurisdiction, Weems v. United States, supra, at 380-381, 30 S.Ct., at 554-555. A. 61 Each of the crimes that underlies the petitioner's conviction as a habitual offender involves the use of fraud to obtain small sums of money ranging from $28.36 to $120.75. In total, the three crimes involved slightly less than $230. None of the crimes involved injury to one's person, threat of injury to one's person, violence, the threat of violence, or the use of a weapon. Nor does the commission of any such crimes ordinarily involve a threat of violent action against another person or his property. It is difficult to imagine felonies that pose less danger to the peace and good order of a civilized society than the three crimes committed by the petitioner. Indeed, the state legislature's recodification of its criminal law supports this conclusion. Since the petitioner was convicted as a habitual offender, the State has reclassified his third offense, theft by false pretext, as a misdemeanor. Tex.Penal Code Ann. § 31.03(d)(3) (Supp.1980).12 B 62 Apparently, only 12 States have ever enacted habitual offender statutes imposing a mandatory life sentence for the commission of two or three nonviolent felonies and only 3, Texas, Washington, and West Virginia, have retained such a statute.13 Thus, three-fourths of the States that experimented with the Texas scheme appear to have decided that the imposition of a mandatory life sentence upon some persons who have committed three felonies represents excess punishment. Kentucky, for example, replaced the mandatory life sentence with a more flexible scheme "because of a judgment that under some circumstances life imprisonment for an habitual criminal is not justified. An example would be an offender who has committed three Class D felonies, none involving injury to person." Commentary following Criminal Law of Kentucky Annotated, Penal Code § 532.080, p. 790 (1978). The State of Kansas abolished its statute mandating a life sentence for the commission of three felonies after a state legislative commission concluded that "[t]he legislative policy as expressed in the habitual criminal law bears no particular resemblance to the enforcement policy of prosecutors and judges." Kansas Legislative Council, The Operation of the Kansas Habitual Criminal Law, Pub.No.47, p. 4 (1936). In the eight years following enactment of the Kansas statute, only 96 of the 733 defendants who committed their third felony were sentenced to life imprisonment. Id., at 32-33. This statistic strongly supports the belief that prosecutors and judges thought the habitual offender statute too severe.14 In Washington, which retains the Texas rule, the State Supreme Court has suggested that application of its statute to persons like the petitioner might constitute cruel and unusual punishment. See State v. Lee, 87 Wash.2d 932, 937, n. 4, 558 P.2d 236, 240, n. 4 (1976). 63 More than three-quarters of American jurisdictions have never adopted a habitual offender statute that would commit the petitioner to mandatory life imprisonment. The jurisdictions that currently employ habitual offender statutes either (i) require the commission of more than three offenses,15 (ii) require the commission of at least one violent crime,16 (iii) limit a mandatory penalty to less than life,17 or (iv) grant discretion to the sentencing authority.18 In none of the jurisdictions could the petitioner have received a mandatory life sentence merely upon the showing that he committed three nonviolent property-related offenses.19 64 The federal habitual offender statute also differs materially from the Texas statute. Title 18 U.S.C. § 3575 provides increased sentences for "dangerous special offenders" who have been convicted of a felony. A defendant is a "dangerous special offender" if he has committed two or more previous felonies, one of them within the last five years, if the current felony arose from a pattern of conduct "which constituted a substantial source of his income, and in which he manifested special skill or expertise," or if the felony involved a criminal conspiracy in which the defendant played a supervisory role. § 3575(e). Federal courts may sentence such persons "to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony." § 3575(b).20 Thus, Congress and an overwhelming number of state legislatures have not adopted the Texas scheme. These legislative decisions lend credence to the view that a mandatory life sentence for the commission of three nonviolent felonies is unconstitutionally disproportionate.21 C 65 Finally, it is necessary to examine the punishment that Texas provides for other criminals. First and second offenders who commit more serious crimes than the petitioner may receive markedly less severe sentences. The only first-time offender subject to a mandatory life sentence is a person convicted of capital murder. Tex.Penal Code §§ 12.31, 19.03 (1974). A person who commits a first-degree felony, including murder, aggravated kidnaping, or aggravated rape, may be imprisoned from 5 to 99 years. §§ 19.02, 21.03; 12.32 (1974 and Supp.1980). Persons who commit a second-degree felony, including voluntary manslaughter, rape, or robbery, may be punished with a sentence of between 2 and 20 years. § 12.33 (1974). A person who commits a second felony is punished as if he had committed a felony of the next higher degree. §§ 12.42(a)-(b) (1974). Thus, a person who rapes twice may receive a 5-year sentence. He also may, but need not, receive a sentence functionally equivalent to life imprisonment. 66 The State argues that these comparisons are not illuminating because a three-time recidivist may be sentenced more harshly than a first-time offender. Of course, the State may mandate extra punishment for a recidivist. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). In Texas a person convicted twice of the unauthorized use of a vehicle receives a greater sentence than a person once convicted for that crime, but he does not receive a sentence as great as a person who rapes twice. Compare §§ 12.42(a) and 31.07 with § 12.42(b); § 21.02 (1979 and Supp.1980). Such a statutory scheme demonstrates that the state legislature has attempted to choose a punishment in proportion to the nature and number of offenses committed. 67 Texas recognizes when it sentences two-time offenders that the amount of punishment should vary with the severity of the offenses committed. But all three-time felons receive the same sentence. In my view, imposition of the same punishment upon persons who have committed completely different types of crimes raises serious doubts about the proportionality of the sentence applied to the least harmful offender. Of course, the Constitution does not bar mandatory sentences. I merely note that the operation of the Texas habitual offender system raises a further question about the extent to which a mandatory life sentence, no doubt a suitable sentence for a person who has committed three violent crimes, also is a proportionate punishment for a person who has committed the three crimes involved in this case. D 68 Examination of the objective factors traditionally employed by the Court to assess the proportionality of a sentence demonstrates that petitioner suffers a cruel and unusual punishment. Petitioner has been sentenced to the penultimate criminal penalty because he committed three offenses defrauding others of about $230. The nature of the crimes does not suggest that petitioner ever engaged in conduct that threatened another's person, involved a trespass, or endangered in any way the peace of society. A comparison of the sentence petitioner received with the sentences provided by habitual offender statutes of other American jurisdictions demonstrates that only two other States authorize the same punishment. A comparison of petitioner to other criminal sentenced in Texas shows that he has been punished for three property-related offenses with a harsher sentence than that given first-time offenders or two-time offenders convicted of far more serious offenses. The Texas system assumes that all three-time offenders deserve the same punishment whether they commit three murders or cash three fraudulent checks. 69 The petitioner has committed criminal acts for which he may be punished. He has been given a sentence that is not inherently barbarous. But the relationship between the criminal acts and the sentence is grossly disproportionate. For having defrauded others of about $230, the State of Texas has deprived petitioner of his freedom for the rest of his life. The State has not attempted to justify the sentence as necessary either to deter other persons or to isolate a potentially violent individual. Nor has petitioner's status as a habitual offender been shown to justify a mandatory life sentence. My view, informed by examination of the "objective indicia that reflect the public attitude toward a given sanction," Gregg v. Georgia, 428 U.S., at 173, 96 S.Ct., at 2925, is that this punishment violates the principle of proportionality contained within the Cruel and Unusual Punishments Clause. V 70 The Court today agrees with the State's arguments that a decision in petitioner's favor would violate principles of federalism and, because of difficulty in formulating standards to guide the decision of the federal courts, would lead to excessive interference with state sentencing decisions. Neither contention is convincing. 71 Each State has sovereign responsibilities to promulgate and enforce its criminal law. In our federal system we should never forget that the Constitution "recognizes and preserves the autonomy and independence of the States,—independence in their legislative and independence in their judicial departments." Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), quoting Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401, 37 L.Ed. 772 (1893) (Field, J., dissenting). But even as the Constitution recognizes a sphere of state activity free from federal interference, it explicitly compels the States to follow certain constitutional commands. When we apply the Cruel and Unusual Punishments Clause against the States, we merely enforce an obligation that the Constitution has created. As Mr. Justice REHNQUIST has stated, "[c]ourts are exercising no more than the judicial function conferred upon them by Art. III of the Constitution when they assess, in a case before them, whether or not a particular legislative enactment is within the authority granted by the Constitution to the enacting body, and whether it runs afoul of some limitation placed by the Constitution on the authority of that body." Furman v. Georgia, 408 U.S., at 466, 92 S.Ct., at 2842 (dissenting opinion). See Weems v. United States, 217 U.S., at 379, 30 S.Ct., at 554. 72 Because the State believes that the federal courts can formulate no practicable standard to identify grossly disproportionate sentences, it fears that the courts would intervene in state criminal justice systems at will. Such a "floodgates" argument can be easy to make and difficult to rebut. But in this case we can identify and apply objective criteria that reflect constitutional standards of punishment and minimize the risk of judicial subjectivity. Moreover, we can rely upon the experience of the United States Court of Appeals for the Fourth Circuit in applying criteria similar to those that I believe should govern this case. 73 In 1974, the Fourth Circuit considered the claim of a West Virginia prisoner who alleged that the imposition of a mandatory life sentence for three nonviolent crimes violated the Eighth Amendment. In Hart v. Coiner, 483 F.2d 136 (1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974), the court held that the mandatory sentence was unconstitutional as applied to the prisoner. The court noted that none of the offenses involved violence or the danger of violence, that only a few States would apply such a sentence, and that West Virginia gave less severe sentences to first- and second-time offenders who committed more serious offenses. The holding in Hart v. Coiner is the holding that the State contends will undercut the ability of the States to exercise independent sentencing authority. Yet the Fourth Circuit subsequently has found only twice that noncapital sentences violate the Eighth Amendment. In Davis v. Davis, 601 F.2d 153 (1979) (en banc), the court held that a 40-year sentence for possession and distribution of less than nine ounces of marihuana was cruel and unusual. In Roberts v. Collins, 544 F.2d 168 (1976), the court held that a person could not receive a longer sentence for a lesser included offense (assault) than he could have received for the greater offense (assault with intent to murder).22 74 More significant are those cases in which the Fourth Circuit held that the principles of Hart v. Coiner were inapplicable. In a case decided the same day as Hart v. Coiner, the Court of Appeals held that a 10-year sentence given for two obscene telephone calls did not violate the Cruel and Unusual Punishments Clause. The court stated that "[w]hatever may be our subjective view of the matter, we fail to discern here objective factors establishing disproportionality in violation of the eighth amendment." Wood v. South Carolina, 483 F.2d 149, 150 (1973). In Griffin v. Warden, 517 F.2d 756 (1975), the court refused to hold that the West Virginia statute was unconstitutionally applied to a person who had been convicted of breaking and entering a gasoline and grocery store, burglary of a residence, and grand larceny. The court distinguished Hart v. Coiner on the ground that Griffin's offenses "clearly involve the potentiality of violence and danger to life as well as property." 517 F.2d, at 757. Similarly, the Fourth Circuit turned aside an Eighth Amendment challenge to the imposition of a 10- to 20-year sentence for statutory rape of a 13-year-old female. Hall v. McKenzie, 537 F.2d 1232, 1235-1236 (1976). The court emphasized that the sentence was less severe than a mandatory life sentence, that the petitioner would have received a similar sentence in 17 other American jurisdictions, and that the crime involved violation of personal integrity and the potential of physical injury. The Fourth Circuit also has rejected Eighth Amendment challenges brought by persons sentenced to 12 years for possession and distribution of heroin, United States v. Atkinson, 513 F.2d 38, 42 (1975), 2 years for unlawful possession of a firearm, United States v. Wooten, 503 F.2d 65, 67 (1974), 15 years for assault with intent to commit murder, Robinson v. Warden, 455 F.2d 1172 (1972), and 40 years for kidnaping, United States v. Martell, 335 F.2d 764 (1964).23 75 I do not suggest that each of the decisions in which the Court of Appeals for the Fourth Circuit applied Hart v. Coiner is necessarily correct. But I do believe that the body of Eighth Amendment law that has developed in that Circuit constitutes impressive empirical evidence that the federal courts are capable of applying the Eighth Amendment to disproportionate noncapital sentences with a high degree of sensitivity to principles of federalism and state autonomy.24 VI 76 I recognize that the difference between the petitioner's grossly disproportionate sentence and other prisoners' constitutionally valid sentences is not separated by the clear distinction that separates capital from noncapital punishment. "But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere." Pearce v. Commissioner, 315 U.S. 543, 558, 62 S.Ct. 754, 761, 86 L.Ed. 1016 (1942) (Frankfurter, J., dissenting). The Court has, in my view, chosen the easiest line rather than the best.25 77 It is also true that this Court has not heretofore invalidated a mandatory life sentence under the Eighth Amendment. Yet our precedents establish that the duty to review the disproportionality of sentences extends to noncapital cases. Supra, at 289-293. The reach of the Eighth Amendment cannot be restricted only to those claims previously adjudicated under the Cruel and Unusual Punishments Clause. "Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' " Weems v. United States, 217 U.S., at 373, 30 S.Ct., at 551. 78 We are construing a living Constitution. The sentence imposed upon the petitioner would be viewed as grossly unjust by virtually every layman and lawyer. In my view, objective criteria clearly establish that a mandatory life sentence for defrauding persons of about $230 crosses any rationally drawn line separating punishment that lawfully may be imposed from that which is proscribed by the Eighth Amendment. I would reverse the decision of the Court of Appeals. 1 With minor revisions, this article has since been recodified as Texas Penal Code Ann. § 12.42(d) (1974). 2 In 1964 Texas Penal Code Ann., Art. 1555b, provided: "Section 1. It shall be unlawful for any person to present a credit card or alleged credit card, with the intent to defraud, to obtain or attempt to obtain any item of value or service of any type; or to present such credit card or alleged credit card, with the intent to defraud, to pay for items of value or services rendered." App. to Tex.Penal Code Ann., p. 712 (1974). 3 In 1964 Texas Penal Code Ann., Art. 1555b(4)(d), provided: "For a violation of this Act, in the event the amount of the credit obtained or the value of the items or services is Fifty Dollars ($50) or more, punishment shall be confinement in the penitentiary for not less than two (2) nor more than ten (10) years." App. to Tex.Penal Code Ann., p. 713 (1974). 4 In 1969 Texas Penal Code Ann., Art. 996, provided: "If any person shall knowingly pass as true, or attempt to pass as true, any such forged instrument in writing as is mentioned and defined in the preceding articles of this chapter, he shall be confined in the penitentiary not less than two nor more than five years." App. to Tex.Penal Code Ann., p. 597 (1974). 5 In 1973 Texas Penal Code Ann., Art. 1410, provided: " 'Theft' is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking." App. to Tex.Penal Code Ann., p. 688 (1974). In 1973 Texas Penal Code Ann., Art. 1413, provided: "The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete." App. to Tex.Penal Code Ann., p. 689 (1974). 6 In 1973 Texas Penal Code § 1421 provided: "Theft of property of the value of fifty dollars or over shall be punished by confinement in the penitentiary not less than two nor more than ten years." App. to Tex.Penal Code Ann., p. 690 (1974). 7 Preliminarily, the respondent argues that Rummel's claim is barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), because he did not object at the punishment stage of his trial to the imposition of a mandatory life sentence. Respondent raised this claim for the first time in his petition to the Court of Appeals for rehearing en banc, which was filed shortly after Wainwright was decided. The Court of Appeals rejected this argument because it did not believe that Texas' contemporaneous-objection requirement extended to a challenge like that raised by Rummel. See 587 F.2d 651, 653-654 (CA5 1978). Deferring to the Court of Appeals' interpretation of Texas law, we decline to hold that Wainwright bars Rummel from presenting his claim. 8 Texas, like most States, defines felonies as offenses that "may—not must—be punishable by death or by confinement in the penitentiary. . . ." Tex.Penal Code Ann., Art. 47 (Vernon 1925), recodified without substantive change at Tex.Penal Code Ann. § 1.07(14) (1974). See also W. LaFave & A. Scott, Handbook on Criminal Law 26 (1972). 9 See Ala.Code §§ 13-3-50, 13-3-90 (1975) (1 to 10 years); Alaska Stat.Ann. § 11.20.360 (1970) (1 to 5 years); Ariz.Rev.Stat.Ann. §§ 13-661(A)(3), 13-663(A)(1), 13-671 (1956 and Supp.1957-1958) (1 to 10 years); Ark.Stat.Ann. §§ 41-1901, 41-3907 (1964) (1 to 21 years); Colo.Rev.Stat. §§ 18-4-401, 18-1-105 (1973) (fine or up to 10 years); Del.Code Ann., Tit. 11, §§ 841, 843, 4205 (1974) (fine or up to 7 years); D.C.Code § 22-1301 (1973) (1 to 3 years); Fla.Stat. § 811.021 (1965) (fine or up to 5 years); Ga.Code Ann. §§ 26-1803, 26-1812 (1977) (fine or up to 10 years); Ind.Code Ann. §§ 10-3030(b), 10-3039(3) (Supp.1975) (fine or up to 10 years); Kan.Stat.Ann. §§ 21-3701, 21-4501 (1974) (1 to 3 years); Ky.Rev.Stat. §§ 514.040, 532.080 (1975) (1 to 5 years); La.Rev.Stat.Ann. § 14:67 (West 1974) (up to 2 years); Me.Rev.Stat.Ann., Tit. 17, § 1601 (1965) (fine or up to 7 years); Md.Ann.Code, Art. 27, § 140 (1957) (fine or up to 10 years); Mass.Gen.Laws Ann., ch. 266, § 30 (West 1970) (fine or up to 5 years); Mich.Comp.Laws § 750.218 (1968) (fine or up to 10 years); Minn.Stat. § 609.52 (Supp.1978) (fine or up to 5 years); Miss.Code Ann. § 97-19-39 (1972) (fine or up to 3 years); Mont.Rev.Code Ann. §§ 94-2701(1), 94-2704(1), 94-2706 (1947) (1 to 14 years); Nev.Rev.Stat. §§ 205.380, 205.380(1) (1977) (fine or 1 to 10 years); N.H.Rev.Stat.Ann. §§ 637:4(I), 637:11(II)(a), 651:2 (1974) (fine or up to 7 years); N.C.Gen.Stat. § 14-100 (1969) (fine or 4 months to 10 years); N.D.Cent.Code §§ 12.1-23-02, 12.1-23-05(2)(a), 12.1-32-01(3) (1976) (fine or up to 5 years); Ohio Rev.Code Ann. § 2911.01 (Supp.1974) (1 to 3 years), committee comment following Ohio Rev.Stat.Ann. § 2913.02 (1975); Okla.Stat., Tit. 21, §§ 1541.1, 1541.2 (Supp.1979-1980) (fine or 1 to 10 years); S.D.Comp.Laws Ann. §§ 22-37-1, 22-37-2, 22-37-3 (1969) (up to 10 years); Tenn.Code Ann. §§ 39-1901, 39-4203, 39-4204 (1975) (3 to 10 years); Tex.Penal Code Ann., Arts. 1410, 1413, 1421 (Vernon 1925) (2 to 10 years); Utah Code Ann. §§ 76-3-203(3), 76-6-405, 76-6-412 (1978), and accompanying Compiler's Note (up to 5 years); Vt.Stat.Ann., Tit. 13, § 2002 (1958) (up to 10 years); Va.Code §§ 18.2-178, 18.2-95 (1975) (fine or 1 to 20 years); Wash.Rev.Code Ann. §§ 9.54.010(2), 9.54.090(6) (1974) (up to 15 years); W.Va.Code §§ 61-3-24, 61-3-13 (1977) (1 to 10 years); Wis.Stat.Ann. § 943.20 (1958) (fine or up to 5 years); Wyo.Stat. § 6-3-106 (1977) (up to 10 years). 10 In 1969, Rummel's passing of a forged check would have been punishable by imprisonment in 49 States and the District of Columbia, even though the amount in question was only $28.36. See Ala.Code, Tit. 14, §§ 199, 207 (1958) (1 to 20 years); Ariz.Rev.Stat.Ann. § 13-421 (Supp.1957-1978) (1 to 14 years); Ark.Stat.Ann. § 41-1806 (1964) (2 to 10 years); Cal.Penal Code Ann. §§ 470, 473 (West 1970) (up to 14 years); Colo.Rev.Stat. § 40-6-1 (1963) (1 to 14 years); Conn.Gen.Stat. § 53-346 (1968) (up to 5 years); Del.Code Ann., Tit. 11, §§ 861, 4205 (1974) (fine or up to 7 years); D.C.Code § 22-1401 (1973) (1 to 10 years); Fla.Stat. §§ 831.01, 831.02 (1965) (fine or up to 10 years); Ga.Code Ann. § 26-1701 (1977) (1 to 10 years); Haw.Rev.Stat. §§ 743-9, 743-11 (1968) (fine or up to 5 years' hard labor); Idaho Code §§ 18-3601, 18-3604 (1948) (1 to 14 years); Ill.Rev.Stat., ch. 38, § 17-3 (1971) (fine and/or 1 to 14 years); Ind.Code § 10-2102 (1956) (2 to 14 years plus fine); Iowa Code § 718.2 (1950) (fine or up to 10 years); Kan.Stat.Ann. §§ 21-609, 21-631 (1964) (up to 10 years' hard labor); Ky.Rev.Stat. § 434.130 (1962) (2 to 10 years); La.Rev.Stat.Ann. § 14:72 (West 1974) (fine or up to 10 years' hard labor); Me.Rev.Stat.Ann., Tit. 17, § 1501 (1965) (up to 10 years); Md.Ann.Code, Art. 27, § 44 (1957) (1 to 10 years); Mass.Gen.Laws Ann. ch. 267, § 5 (West 1970) (2 to 10 years); Mich.Comp.Laws § 750.253 (1968) (fine or up to 5 years); Minn.Stat. § 609.625 (3) (1964) (fine or up to 10 years); Miss.Code Ann. §§ 2172, 2187 (1942) (2 to 15 years); Mo.Rev.Stat. § 561.011 (1969) (fine or up to 10 years); Mont.Rev.Code Ann. §§ 94-2001, 94-2004 (1947) (1 to 14 years); Neb.Rev.Stat. § 28-601 (1943) (1 to 20 years plus fine); Nev.Rev.Stat. § 205.090 (1959) (1 to 14 years); N.H.Rev.Stat.Ann. §§ 581:1, 581:2 (1955) (up to 7 years); N.J.Stat.Ann. §§ 2A:109-1, 2A:85-6 (West 1969) (fine or up to 7 years); N.M.Stat.Ann. §§ 40A-16-9, 40A-29-3(C) (Supp.1963) (fine or 2 to 10 years); N.Y.Penal Law §§ 70.00(2)(d), 170.10, 170.25 (McKinney 1967 and 1975) (up to 7 years); N.C.Gen.Stat. § 14-120 (1969) (4 months to 10 years); N.D.Cent.Code §§ 12-39-23, 12-39-27 (1960) (up to 10 years); Ohio Rev.Code Ann. § 2913.01 (1954) (1 to 20 years); Okla.Stat., Tit. 21, §§ 1577, 1621(2) (1958) (up to 7 years); Ore.Rev.Stat. §§ 165.105, 165.115 (Supp.1967) (up to 10 years); Pa.Stat.Ann., Tit. 18, § 5014 (Purdon 1963) (fine or up to 10 years); R.I.Gen.Laws § 11-17-1 (1956) (fine or up to 10 years); S.C.Code § 16-13-10 (1976) (1 to 7 years plus fine); S.D.Comp.Laws Ann. §§ 22-39-14, 22-39-17 (1967) (fine or up to 5 years); Tenn.Code Ann. §§ 39-1704, 39-1721, 39-4203, 39-4204 (1955 and Supp.1974) (1 to 5 years); Texas Penal Code Ann., Art. 996 (Vernon 1925) (2 to 5 years); Utah Code Ann. §§ 76-26-1, 76-26-4 (1953) (1 to 20 years); Vt.Stat.Ann., Tit. 13, § 1802 (1958) (fine or up to 10 years); Va.Code § 18.1-96 (1960) (up to 10 years); Wash.Rev.Code Ann. §§ 9.44.020, 9.44.060 (1956) (up to 20 years); W.Va.Code § 61-4-5 (1966) (up to 10 years); Wis.Stat.Ann. § 943.38 (1958) (fine or up to 10 years); Wyo.Stat. § 6-2-101 (1977) (up to 14 years). In 1964, at least five of the States that had specific statutes covering credit-card fraud authorized terms of imprisonment for a crime like Rummel's. See Cal.Penal Code Ann. § 484a(b)(6) (Deering Supp.1964), § 18 (Deering 1960) (up to 5 years); Kan.Stat.Ann. §§ 21-533, 21-534, 21-590 (1964) (up to 5 years' hard labor); 1963 Ore.Laws, ch. 588, § 3(6) (up to 5 years); Tex.Penal Code Ann., Art. 1555b (Vernon Supp.1973) (2 to 10 years); Va.Code § 18.1-119.1 (Supp.1964) (up to 10 years). A number of other States, while lacking specific statutes dealing with credit-card fraud, apparently authorized an equivalent degree of punishment for such a crime under their general fraud provisions. See, e. g., Ala.Code, Tit. 14, §§ 209, 331 (1958 and Supp.1973) (1 to 10 years); Mont.Rev.Code Ann. §§ 94-1805, 94-2704(1), 94-2706 (1947) (1 to 14 years); N.H.Rev.Stat.Ann. § 580:1 (1955) (fine or up to 7 years); N.C.Gen.Stat. § 14-100 (1953) (fine or up to 10 years); N.D.Cent.Code § 12-38-04 (1960) (fine or up to 3 years); Tenn.Code Ann. §§ 39-1901, 39-4203, 39-4204 (1955 and Supp.1974) (1 to 5 years); Vt.Stat.Ann., Tit. 13, § 2002 (1958) (fine or up to 10 years). After 1964, at least two other States adopted specific statutes dealing with credit-card fraud and authorizing imprisonment for crimes like Rummel's. See Idaho Code §§ 18-112, 18-3113, 18-3119 (1979) (fine or up to 5 years); Wash.Rev.Code Ann.§ 9.26A.040 (1972) (up to 20 years). 11 This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, post, at 288, if a legislature made overtime parking a felony punishable by life imprisonment. 12 See Transcript of Record in Graham v. West Virginia, O.T. 1911, No. 721, pp. 4, 5, 9. 13 While at the time this Court decided Graham the Eighth Amendment's proscription against cruel and unusual punishments had not been held applicable to the States through the Fourteenth Amendment, see e. g., Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422 (1947) (plurality opinion), earlier cases had assumed, without deciding, that the States could not inflict cruel and unusual punishments. See, e. g., Howard v. Fleming, 191 U.S. 126, 135-136, 24 S.Ct. 49, 50, 48 L.Ed. 121 (1903); McDonald v. Massachusetts, 180 U.S. 311, 313, 21 S.Ct. 389, 390, 45 L.Ed. 542 (1901). Graham's reference to Howard, McDonald, and other cases indicates that it followed a similar course. See 224 U.S., at 631, 32 S.Ct., at 588. 14 Rummel characterizes Graham as a case where petitioner argued only that imposition of a life sentence under West Virginia's recidivist statute was, per se, a violation of the Eighth Amendment. See Brief for Petitioner 18-19, n. 6. We do not share that reading. The brief submitted on Graham's behalf clearly attacked the alleged disproportionality of his sentence. See Brief for Plaintiff in Error in Graham v. West Virginia, O.T. 1911, No. 721, pp. 37-38. The brief on behalf of the State of West Virginia, moreover, expressly assumed that Graham was arguing that "the sentence in this case is so disproportionate to the offense as to be cruel and unusual." Brief for Defendant in Error in Graham v. West Virginia, supra, at 19. 15 Texas courts have interpreted the recidivist statute as requiring not merely that the defendant be convicted of two prior felonies, but also that he actually serve time in prison for each of those offenses. See Cromeans v. State, 160 Tex.Cr.R. 135, 138, 268 S.W.2d 133, 135 (1954). 16 As the statute has been interpreted, the State must prove that each succeeding conviction was subsequent to both the commission of and the conviction for the prior offense. See Tyra v. State, 534 S.W.2d 695, 697-698 (Tex.Crim.App.1976); Rogers v. State, 168 Tex.Cr.R. 306, 308, 325 S.W.2d 697, 698 (1959). 17 Thus, it is not true that, as the dissent claims, the Texas scheme subjects a person to life imprisonment "merely because he is a three-time felon." Post, at 299, n. 18. On the contrary, Art. 63 mandates such a sentence only after shorter terms of actual imprisonment have proved ineffective. 18 See Wash.Rev.Code § 9.92.090 (1976); W.Va.Code § 61-11-18 (1977). 19 See, e. g., Colo.Rev.Stat. § 16-13-101 (1973 and Supp.1976); Nev.Rev.Stat. § 207.010 (1977); S.D.Comp.Laws Ann. §§ 22-6-1, 22-7-8 (Supp.1978); Wyo.Stat. § 6-1-110 (1977). 20 See, e. g., Miss.Code Ann. § 99-19-83 (Supp.1979). 21 See, e. g., D.C.Code § 22-104a (1973); Idaho Code § 19-2514 (1979); Okla.Stat., Tit. 21, § 51 (Supp.1979-1980). 22 Nor do we have another sort of objective evidence found in Coker. After Furman, where the Court had declared unconstitutional the death penalty statutes of all of the States as then applied, a majority of the States had re-enacted the death penalty for killings, but had not done so for rape. In Coker the plurality found this fact of some importance. See 433 U.S., at 594-595, 97 S.Ct., at 2867. Here, if there was a watershed comparable to Furman, it was Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), which confirmed, rather than undercut, the constitutionality of recidivist statutes. There thus has been no comparable occasion for contemporary expression of legislative or public opinion on the question of what sort of penalties should be applied to recidivists, or to those who have committed crimes against property. 23 See Ariz.Rev.Stat.Ann. § 13-663(A) (Supp.1957-1978) (repealed in 1977). 24 See Cal.Penal Code Ann. § 487(1) (West 1970). 25 See, e. g., Idaho Code §§ 18-4604, 18-4607 (1979). 26 See, e. g., Nev.Rev.Stat. § 205.220 (1973). 27 The dissent draws some support for its belief that Rummel's sentence is unconstitutional by comparing it with punishments imposed by Texas for crimes other than those committed by Rummel. Other crimes, of course, implicate other societal interests, making any such comparison inherently speculative. Embezzlement, dealing in "hard" drugs, and forgery, to name only three offenses, could be denominated "property related" offenses, and yet each can be viewed as an assault on a unique set of societal values as defined by the political process. The notions embodied in the dissent that if the crime involved "violence," see post, at 295-296, n. 12, a more severe penalty is warranted under objective standards simply will not wash, whether it be taken as a matter of morals, history, or law. Caesar's death at the hands of Brutus and his fellow conspirators was undoubtedly violent; the death of Hamlet's father at the hands of his brother, Claudius, by poison, was not. Yet there are few, if any, States which do not punish just as severely murder by poison (or attempted murder by poison) as they do murder or attempted murder by stabbing. The highly placed executive who embezzles huge sums from a state savings and loan association, causing many shareholders of limited means to lose substantial parts of their savings, has committed a crime very different from a man who takes a smaller amount of money from the same savings and loan at the point of a gun. Yet rational people could disagree as to which criminal merits harsher punishment. By the same token, a State cannot be required to treat persons who have committed three "minor" offenses less severely than persons who have committed one or two "more serious" offenses. If nothing else, the three-time offender's conduct supports inferences about his ability to conform with social norms that are quite different from possible inferences about first- or second-time offenders. In short, the "seriousness" of an offense or a pattern of offenses in modern society is not a line, but a plane. Once the death penalty and other punishments different in kind from fine or imprisonment have been put to one side, there remains little in the way of objective standards for judging whether or not a life sentence imposed under a recidivist statute for several separate felony convictions not involving "violence" violates the cruel-and-unusual-punishment prohibition of the Eighth Amendment. As Mr. Justice Frankfurter noted for the Court in Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958), "[w]hatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, . . . these are peculiarly questions of legislative policy." 28 Compare A. Von Hirsch, Doing Justice: The Choice of Punishments, Report of the Committee for the Study of Incarceration 140 (1976); M. Yeager, Do Mandatory Prison Sentences for Handgun Offenders Curb Violent Crime?, Technical Report for the United States Conference of Mayors 25-26 (1976); with E. van den Haag, Punishing Criminals: Concerning a Very Old and Painful Question 158-159, 177 (1975). See generally F. Zimring & G. Hawkins, Deterrence: The Legal Threat in Crime Control 234-241, 245-246 (1973). 29 Compare R. McKay, It's Time to Rehabilitate the Sentencing Process, An Occasional Paper—Aspen Institute for Humanistic Studies 4-5 (1977); Von Hirsch, supra, at 98-104; with R. Dawson, Sentencing: The Decision as to Type, Length, and Conditions of Sentence, Report of the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States 381, 414 (1969); Yeager, supra, at 25-26. See generally U.S. Dept. of Justice, Determinate Sentencing: Reform or Regression?, Proceedings of the Special Conference on Determinate Sentencing, June 2-3, 1977. 1 3 J. Elliot, Debates on the Federal Constitution 447-448 (1876). 2 1 Annals of Cong. 754 (1789) (Rep. Livermore). 3 J. Holt, Magna Carta 323 (1965). 4 R. Perry, Sources of Our Liberties 236 (1959). 5 The principle that grossly disproportionate sentences violate the Eighth Amendment was first enunciated in this Court by Mr. Justice Field in O'Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450 (1892). In that case, a defendant convicted of 307 offenses for selling alcoholic beverages in Vermont had been sentenced to more than 54 years in prison. The Court did not reach the question whether the sentence violated the Eighth Amendment because the issue had not been raised properly, and because the Eighth Amendment had yet to be applied against the States. Id., at 331-332, 12 S.Ct., at 696-697. But Mr. Justice Field dissented, asserting that the "cruel and unusual punishment" Clause was directed "against all punishments which by their excessive length or severity are greatly disproportioned to the offences charged." Id., at 339-340, 12 S.Ct., at 699. 6 See also Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1377 (1979); Note, Disproportionality in Sentences of Imprisonment, 79 Colum.L.Rev. 1119 (1979). 7 The Court notes that Graham v. West Virginia, 224 U.S. 616, 631, 32 S.Ct. 583, 588, 56 L.Ed. 917 (1912), rejected an Eighth Amendment claim brought by a person sentenced under the West Virginia statute to mandatory life imprisonment for the commission of three felonies. But the Graham Court's entire discussion of that claim consists of one sentence: "Nor can it be maintained that cruel and unusual punishment has been inflicted." The Court then cited six cases in support of its statement. The first case was In re Kemmler, 136 U.S. 436, 448-449, 10 S.Ct. 930, 934, 34 L.Ed. 519 (1890), in which the Court declined to apply the Eighth Amendment against state action. The Graham opinion also cited Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 111, 29 S.Ct. 220, 227, 53 L.Ed. 417 (1909), in which the Court recognized that no claim was made that the Eighth Amendment controlled state action, and stated that "[w]e can only interfere with such legislation and judicial action of the States enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law." The Eighth Amendment was not applied as a prohibition on state action until this Court's decision in Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962). A one-sentence holding in a preincorporation decision is hardly relevant to the determination of the case before us today. Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916), also adds "little to our knowledge of the scope of the cruel and unusual language." Furman v. Georgia, 408 U.S. 238, 325, 92 S.Ct. 2726, 2770, 33 L.Ed.2d 346 (1972) (MARSHALL, J., concurring). In Badders, this Court rejected a claim that concurrent 5-year sentences and a $7,000 fine for seven counts of mail fraud violated the Eighth Amendment. 240 U.S., at 394, 36 S.Ct., at 368. Badders merely teaches that the Court did not believe that a 5-year sentence for the commission of seven crimes was cruel and unusual. 8 Furman v. Georgia, 408 U.S., at 280, 92 S.Ct., at 2747 (BRENNAN, J., concurring); id., at 312, 92 S.Ct., at 2763 (WHITE, J., concurring); id., at 331-332, 92 S.Ct., at 2773 (MARSHALL, J., concurring); id., at 457-458, 92 S.Ct., at 2837-38 (POWELL, J., dissenting, joined by BURGER, C. J., and BLACKMUN and REHNQUIST, JJ.). 9 Id., at 266, 92 S.Ct., at 2740 (BRENNAN, J., concurring); id., at 329, 92 S.Ct., at 2772 (MARSHALL, J., concurring); id., at 382, 92 S.Ct., at 2800 (BURGER, C. J., dissenting, joined by BLACKMUN, POWELL, and REHNQUIST, JJ.); id., at 409, 92 S.Ct., at 2813 (BLACKMUN, J., dissenting); id., at 420, 92 S.Ct., at 2819 (POWELL, J., dissenting, joined by BURGER, C. J., and BLACKMUN and REHNQUIST, JJ.). 10 The Coker standard derived from the joint opinion in Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.), which stated that "the inquiry into 'excessiveness' has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. . . . Second, the punishment must not be grossly out of proportion to the severity of the crime." 11 Austin American-Statesman, Sept. 23, 1979, p. A1, col. 4. The newspaper reported that in a 6-month period including June 1979, the Governor rejected 33% of the parole board recommendations that prisoners be released. Ibid. 12 The Court suggests that an inquiry into the nature of the offense at issue in this case inevitably involves identifying subjective distinctions beyond the province of the judiciary. Ante, at 275-276. Yet the distinction between forging a check for $28 and committing a violent crime or one that threatens violence is surely no more difficult for the judiciary to perceive than the distinction between the gravity of murder and rape. See Coker v. Georgia, 433 U.S. 584, 598, 97 S.Ct. 2861, 2869, 53 L.Ed.2d 982 (1977); id., at 603, 97 S.Ct., at 2871 (POWELL, J., concurring in judgment in part and dissenting in part). I do not suggest that all criminal acts may be separated into precisely identifiable compartments. A professional seller of addictive drugs may inflict greater bodily harm upon members of society than the person who commits a single assault. But the difficulties of line-drawing that might be presented in other cases need not obscure our vision here. 13 The nine States that previously enforced such laws include: (1) California, 1927 Cal.Stats., ch. 634, § 1, p. 1066, repealed 1935 Cal.Stats., ch. 602-603, p. 1699; ch. 754, § 1, p. 2121. See Cal.Penal Code Ann. § 667.5 (West Supp.1979) (Habitual offender statute allows no more than three years' additional sentence for the commission of a previous felony). (2) Indiana, 1907 Ind.Acts, ch. 82, § 1, p. 109 repealed, 1977 Ind.Acts No. 340, § 121, p. 1594. See Ind. Code § 35-50-2-8 (Supp.1979) (30 years' additional sentence upon the conviction of a third felony). (3) Kansas, 1927 Kan.Sess.Laws, ch. 191, § 1, p. 247, repealed, 1939 Kan.Sess.Laws, ch. 178, § 1, p. 299. See 1978 Kan.Sess.Laws, ch. 120, § 4(2) (Up to the treble maximum penalty may be given upon the commission of the third felony). (4) Kentucky, 1893 Ky.Acts, ch. 182, Art. I, § 4, p. 757, repealed, 1974 Ky.Acts, ch. 406, § 280, p. 873. See Ky.Rev.Stat. § 532.080 (Supp.1978) (A persistent felony offender may receive a discretionary life sentence upon the conviction of a Class A or B felony). (5) Massachusetts, 1818 Mass.Acts, ch. 176, §§ 5-6, p. 603, repealed, 1833 Mass.Acts, ch. 85, p. 618. See Mass.Gen.Laws Ann., ch. 279, § 25 (West 1972) (A person convicted of three specified felonies receives the maximum penalty provided for the third offense). (6) New York, 1796 N.Y.Laws, ch. 30, p. 669, repealed, 1881 N.Y.Laws, ch. 676, §§ 688-690, p. 181. See N.Y.Penal Code §§ 70.04, 70.06-70.10 (McKinney 1975 and Supp.1979-1980)(mandatory life imprisonment upon the conviction for a third violent felony). (7) Ohio, 1885 Ohio Leg.Acts, No. 751, § 2, p. 236, repealed, 1929 Ohio Leg.Acts, No. 8, §§ 1-2, p. 40. See Ohio Rev.Code Ann. §§ 2929.01, 2929.11, 2929.12 (Supp.1979)(no mandatory habitual offender penalties). (8) Oregon, 1921 Ore.Laws, ch. 70, § 1, p. 97, repealed, 1927 Ore.Laws, ch. 334, §§ 1-3, p. 432. See Ore.Rev.Stat. §§ 161.725, 166.230 (1977) (life sentence upon conviction of fourth armed felony or attempted felony). (9) Virginia, 1848 Va.Acts ch. 199, § 26, p. 752, repealed, 1916 Va.Acts chs. 29-30, pp. 34-35. See 1979 Va.Acts, ch. 411 (no habitual offender statute). In addition to Texas, Washington, see Wash.Rev.Code § 9.92.090 (1976), and West Virginia, see W.Va.Code § 61-11-18 (1977), continue to provide mandatory life imprisonment upon the commission of a third nonviolent felony. 14 See Note, The Kansas Habitual Criminal Act, 9 Washburn L.J. 244, 247-250 (1970); see also State v. Lee, 87 Wash.2d 932, 940-942, 558 P.2d 236, 241-242 (1976) (Rosellini, J., dissenting); State v. Thomas, 16 Wash.App. 1, 13-15, 553 P.2d 1357, 1365-1366 (1976); Commentary following Criminal Law of Kentucky Annotated, Penal Code § 532.080, p. 790 (1978). 15 Four States impose a mandatory life sentence upon the commission of a fourth felony. See Colo.Rev.Stat. § 16-13-101(2) (1978); Nev.Rev.Stat. § 207.010(2) (1977); S.D.Comp.Laws Ann. §§ 22-6-1, 22-7-8 (1979); Wyo.Stat. § 6-1-110 (1977). Thus, even if the line between these States and Texas, West Virginia, and Washington, is "subtle rather than gross," ante, at 279, the most that one can say is that 7 of the 50 States punish the commission of four or fewer felonies with a mandatory life sentence. 16 See, e. g., Del.Code Ann., Tit. 11, §§ 4214, 4215 (1975 and Supp.1978) (mandatory life sentence for one who has committed two felonies and commits a third specified felony involving violence or the threat of violence); Miss.Code Ann. § 99-19-83 (Supp.1979) (mandatory life sentence for one who commits three felonies at least one of which is violent). 17 See, e. g., N.M.Stat.Ann. §§ 31-18-17 (Supp.1979) (Persons who have committed two felonies punishable by at least one year in prison receive four years' additional sentence upon the commission of a third felony and eight years upon the commission of a fourth felony); Wis.Stat. § 939.62 (1977) (Persons who have committed one felony within 5 years may be sentenced to 10 years' additional sentence upon the commission of an offense punishable by a term greater than 10 years). 18 See, e. g., D.C.Code § 22-104a (1973) (Persons who commit three felonies may be sentenced to life); Idaho Code § 19-2514 (1979) (Persons who have committed three felonies may receive a sentence ranging from five years to life). Statutes that permit the imposition of a discretionary life sentence for the commission of three felonies are fundamentally different from the statute under review in this case. In a discretionary jurisdiction, the question at sentencing is whether a three-time felon has engaged in behavior other than the commission of three felonies that justifies the imposition of the maximum permissible sentence. In such a jurisdiction, therefore, other evidence of dangerousness may justify imposition of a life sentence. In Texas, a person receives a mandatory life sentence merely because he is a three-time felon. 19 A State's choice of a sentence will, of course, never be unconstitutional simply because the penalty is harsher than the sentence imposed by other States for the same crime. Such a rule would be inconsistent with principles of federalism. The Eighth Amendment prohibits grossly disproportionate punishment, but it does not require local sentencing decisions to be controlled by majority vote of the States. Nevertheless, a comparison of the Texas standard with the sentencing statutes of other States is one method of "assess[ing] contemporary values concerning the infliction of a challenged sanction." Gregg v. Georgia, 428 U.S., at 173, 96 S.Ct., at 2925 (opinion of STEWART, POWELL, and STEVENS, JJ.). The relevant objective factors should be considered together and, although the weight assigned to each may vary, no single factor will ever be controlling. 20 The proportionality principle was incorporated into the bill after the Senate Judiciary Committee heard testimony that a sentencing authority considering the punishment due a dangerous special offender should "examine each substantive offense and make some determination based upon the gravity of that offense as to the ultimate maximum which seems to be wise." Hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 205 (1969) (testimony of Professor Peter W. Low of the University of Virginia School of Law). See Katkin, Habitual Offender Laws: A Reconsideration, 21 Buffalo L.Rev. 99, 118 (1972). 21 The American Law Institute proposes that a felon be sentenced to an extended term of punishment only if he is a persistent offender, professional criminal, dangerous mentally abnormal person whose extended commitment is necessary for the protection of the public, or "a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term is warranted." ALI, Model Penal Code § 7.03 (Prop.Off.Draft 1962). The term for a multiple offender may not exceed the longest sentences of imprisonment authorized for each of the offender's crimes if they ran consecutively. Ibid. Under this proposal the petitioner could have been sentenced up to 25 years. Ante, at 269. The American Bar Association has proposed that habitual offenders be sentenced to no more than 25 years and that "[a]ny increased term which can be imposed because of prior criminality should be related in severity to the sentence otherwise provided for the new offense." The choice of sentence would be left to the discretion of the sentencing court. ABA Project on Standards for Criminal Justice; Sentencing Alternatives and Procedures § 3.3 (App.Draft 1968). 22 In Ralph v. Warden, 438 F.2d 786 (1970), the Fourth Circuit also applied the Eighth Amendment to hold that rape may not be punished by death. This Court reached the same result seven years later in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). 23 The Fourth Circuit also has held that a sentence of eight years for possessing a firearm as a convicted felon, given to a felon previously convicted of manslaughter and breaking and entering, was not disproportionate under 18 U.S.C. § 3575. United States v. Williamson, 567 F.2d 610, 616 (1977). See n. 20, supra, and accompanying text. 24 The District Courts in the Fourth Circuit also have applied the Eighth Amendment carefully. Although one District Court has held that a sentence of 48 years for safecracking is constitutionally disproportionate, see Thacker v. Garrison, 445 F.Supp. 376 (WDNC 1978), other District Courts have found no constitutional infirmity in the disenfranchisement of convicted persons, Thiess v. State Board, 387 F.Supp. 1038, 1042 (Md.1974) (three-judge court), a 5-year sentence for distributing marihuana, Queen v. Leeke, 457 F.Supp. 476 (SC 1978), and a 5-year sentence for possession of marihuana with intent to distribute that was suspended for 20 years on condition of payment of a $1,500 fine and nine months in jail. Wolkind v. Selph, 473 F.Supp. 675 (ED Va.1979). Supreme Courts in two States within the Fourth Circuit have upheld as constitutional a 20-year sentence for a person convicted of burglary who had a prior conviction for armed robbery, Martin v. Leverette, 244 S.E.2d 39, 43-44 (W.Va.1978), and a life sentence for murder, Simmons v. State, 264 S.C. 417, 420, 215 S.E.2d 883, 884 (1975). 25 The Court concedes, as it must, that a mandatory life sentence may be constitutionally disproportionate to the severity of an offense. Ante, at 274, n. 11. Yet its opinion suggests no basis in principle for distinguishing between permissible and grossly disproportionate life imprisonment.

01

445 U.S. 375 100 S.Ct. 1194 63 L.Ed.2d 467 GTE SYLVANIA, INCORPORATED et al., Petitioners,v.CONSUMERS UNION OF the UNITED STATES, INC. et al. No. 78-1248. Argued Nov. 28, 1979. Decided March 19, 1980. Syllabus In connection with an investigation of hazards in the operation of television receivers, respondent Consumer Product Safety Commission (CPSC) obtained various accident reports from television manufacturers, including petitioners. Respondents Consumers Union of the United States, Inc., and Public Citizen's Health Research Group (requesters) sought disclosure of the accident reports under the Freedom of Information Act (FOIA), and the CPSC determined that the reports did not fall within any of the FOIA's exemptions and notified the requesters and the manufacturers that it would release the material on a specified date. Petitioners then filed suits in various Federal District Courts to enjoin disclosure of the allegedly confidential reports, which suits were consolidated in the Federal District Court for the District of Delaware. While those suits were pending, the requesters filed the instant action against the CPSC, its Chairman, Commissioners, and Secretary, and petitioners in the Federal District Court for the District of Columbia, seeking release of the accident reports under the FOIA. That court dismissed the complaint while a motion for a preliminary injunction was still pending in Delaware, observing that the CPSC had assured the court that disclosure would be made as soon as the agency was not enjoined from doing so, and concluding, inter alia, that there was no Art. III case or controversy between the requesters and the federal defendants and therefore no jurisdiction. Ultimately, the Court of Appeals reversed, holding that there was a case or controversy between the requesters and the CPSC as to the scope and effect of the proceedings in Delaware, and that a permanent injunction which meanwhile had been issued in the Delaware proceedings did not foreclose the requesters' FOIA suit. Held: 1. There is a case or controversy as required to establish jurisdiction pursuant to Art. III even though the CPSC agrees with the requesters that the documents should be released under the FOIA. While there is no case or controversy when the parties desire "precisely the same result," here the parties do not desire "precisely the same result," since the CPSC contends that the Delaware injunction prevents it from releasing the documents, whereas the requesters believe that an equitable decree obtained by the manufacturers in a suit in which the requesters were not parties cannot deprive them of their rights under the FOIA. Pp. 382-383. 2. Information may not be obtained under the FOIA when the agency holding the material has been enjoined from disclosing it by a federal district court. The Act gives federal district courts jurisdiction to order the production of "improperly" withheld agency records, but here the CPSC has not "improperly" withheld the accident reports. The Act's legislative history shows that Congress was largely concerned with the unjustified suppression of information by agency officials in the exercise of their discretion, but here the CPSC had no discretion to exercise since its sole basis for not releasing the documents was the injunction issued by the Federal District Court in Delaware. The CPSC was required to obey the injunction out of respect for judicial process, and there is nothing in the legislative history to suggest that Congress intended to require an agency to commit contempt of court in order to release documents. Pp. 384-387. 192 U.S.App.D.C. 93, 590 F.2d 1209, reversed. Mr. Justice MARSHALL delivered the opinion of the Court. 1 This case presents the issue whether information may be obtained under the Freedom of Information Act, 5 U.S.C. § 552, when the agency holding the material has been enjoined from disclosing it by a federal district court. 2 * In March 1974, respondent Consumer Product Safety Commission (CPSC) announced that it would hold a public hearing to investigate hazards in the operation of television receivers and to consider the need for safety standards for televisions. 39 Fed.Reg. 10929. In the notice the CPSC requested from television manufacturers certain information on television-related accidents. After reviewing the material voluntarily submitted the CPSC through orders, 15 U.S.C. § 2076(b)(1), and subpoenas, 15 U.S.C. § 2076(b)(3), obtained from the manufacturers, including petitioners, various accident reports. Claims of confidentiality accompanied most of the reports. 3 Respondents Consumers Union of the United States, Inc., and Public Citizen's Health Research Group (the requesters) sought disclosure of the accident reports from the CPSC under the Freedom of Information Act. The requesters were given access only to those documents for which no claim of confidentiality had been made by the manufacturers. As for the rest, the CPSC gave the manufacturers an opportunity to substantiate their claims of confidentiality. The requesters agreed to wait until mid-March 1975 for the CPSC's determination of the availability of those allegedly confidential documents. 4 In March 1975, the CPSC informed the requesters and the manufacturers that the documents sought did not fall within any of the exemptions of the Freedom of Information Act, and that even if disclosure was not mandated by that Act, the CPSC would exercise its discretion to release the material on May 1, 1975. Upon receiving the notice, petitioners filed suit in the United States District Court for the District of Delaware and three other Federal District Courts,1 seeking to enjoin disclosure of the allegedly confidential reports. Petitioners contended that release of the information was prohibited by § 6 of the Consumer Product Safety Act, 15 U.S.C. § 2055, by exemptions to the Freedom of Information Act,2 and by the Trade Secrets Act, 18 U.S.C. § 1905. Petitioners sought temporary restraining orders in all of the actions, and the CPSC consented to such orders in at least some of the cases. Subsequently the manufacturers' individual actions were consolidated in the District of Delaware, and that court issued a series of temporary restraining orders. Finally, in October 1975 the Delaware District Court entered a preliminary injunction prohibiting release of the documents pending trial. GTE Sylvania Inc. v. Consumer Product Safety Comm'n, 404 F.Supp. 352 (1975). 5 The requesters did not seek to intervene in the Delaware action, nor did petitioners or the CPSC attempt to have the requesters joined. Instead, on May 5, 1975, the requesters filed the instant action in Federal District Court for the District of Columbia, seeking release of the accident reports under the Freedom of Information Act. Named as defendants in that suit were the CPSC, its Chairman, Commissioners, and Secretary, and all of the petitioners. In September 1975, while the motion for a preliminary injunction was still pending in Delaware, the District Court for the District of Columbia dismissed the requesters' complaint. The court observed that the CPSC had determined that the reports should be disclosed and had assured the court on the public record that disclosure would be made as soon as the agency was not enjoined from doing so. The court concluded that there was no Art. III case or controversy between the plaintiffs and the federal defendants and therefore no jurisdiction. It also held that the complaint failed to state a claim against petitioners upon which relief could be granted since they no longer possessed the records sought by the requesters. Nor could petitioners be subject to suit under the compulsory joinder provision of Federal Rule of Civil Procedure 19(a) since that Rule is predicated on the pre-existence of federal jurisdiction over the cause of action, which was not present here. Consumers Union of United States, Inc. v. Consumer Product Safety Comm'n, 400 F.Supp. 848 (DC 1975). 6 The United States Court of Appeals for the District of Columbia Circuit reversed. Consumers Union of United States, Inc. v. Consumer Product Safety Comm'n, 182 U.S.App.D.C. 351, 561 F.2d 349 (1977). That court concluded that there was a case or controversy between the plaintiffs and the CPSC on "the threshold question of the scope and effect of the proceedings in Delaware." Id., at 356, 561 F.2d, at 354. In addition, the CPSC's conduct of the Delaware litigation was "not easily reconcilable with its ostensible acceptance of [the requesters'] argument that the requested documents should be disclosed." Id., at 357, 561 F.2d, at 355.3 The Court of Appeals held that the preliminary injunction issued by the Delaware court did not foreclose the requesters' suit under the Freedom of Information Act. That injunction did not resolve the merits of the claim, but instead was merely pendente lite relief. Thus, the order could not bar the Freedom of Information Act suit in the District of Columbia, although it would weigh in the decision as to which of the two suits should be stayed pending the outcome of the other. The court concluded, however, that such balancing was not required because the Delaware court had entered an order "closing out" that case without further action.4 The Delaware action was effectively dismissed and therefore the preliminary injunction was "dead" and did not bar the Freedom of Information Act suit.5 In addition, the CPSC's efforts in the Delaware action, which the court below considered "less than vigilant," and the resulting absence of full representation of the prodisclosure argument prevented the preliminary injunction from having preclusive effect.6 7 The manufacturers filed a petition for writ of certiorari. While that petition was pending, the Delaware District Court granted the manufacturers' motion for summary judgment and permanently enjoined the CPSC from disclosing the accident data. GTE Sylvania Inc. v. Consumer Product Safety Comm'n, 443 F.Supp. 1152 (Del.1977). We granted certiorari, vacated the judgment of the Court of Appeals for the District of Columbia Circuit, and remanded the case "for further consideration in light of the permanent injunction" entered in Delaware. GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 434 U.S. 1030, 98 S.Ct. 761, 54 L.Ed.2d 778 (1978). 8 On remand, the Court of Appeals reaffirmed its holding that there was a case or controversy within the meaning of Art. III.7 Consumers Union of United States, Inc. v. Consumer Product Safety Comm'n, 192 U.S.App.D.C. 93, 100, 590 F.2d 1209, 1216 (1978). The court also held that the Delaware permanent injunction should not prevent the continuation of the District of Columbia action. Stare decisis would not require deference to the Delaware court's decision if it was in error. Collateral estoppel was inapplicable because the requesters were not parties to the Delaware action and an agency's interests diverge too widely from the private interests of Freedom of Information Act requesters for the agency to constitute an adequate representative. Finally, the principle of comity did not mandate a different result since the requesters were not before the Delaware court. The court below concluded that "none of the familiar anti-relitigation doctrines operates to deprive nonparty requesters of their right to sue for enforcement of the Freedom of Information Act; rather, they remain unaffected by prior litigation solely between the submitters and the involved agency." Id., at 103, 590 F.2d, at 1219. The case was remanded to the District Court for a decision on the merits. If that court concluded that the Freedom of Information Act required disclosure of the reports, it could consider enjoining petitioners from enforcing their final judgment awarded by the Delaware court. 9 We granted certiorari, 441 U.S. 942, 99 S.Ct. 2158, 60 L.Ed.2d 1043 (1979), because of the importance of the issue presented.8 We now reverse. II 10 The threshold question raised by petitioners is whether there is a case or controversy as required to establish jurisdiction pursuant to Art. III. Petitioners urge here, as the District Court held below, that since the CPSC agrees with the requesters that the documents should be released under the Freedom of Information Act, there is no actual controversy presented in this suit. We do not agree. 11 The purpose of the case-or-controversy requirement is to "limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). The clash of adverse parties " 'sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.' " O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). See also Flast v. Cohen, supra, 392 U.S., at 96-97, 88 S.Ct., at 1950-1951. Accordingly, there is no Art. III case or controversy when the parties desire "precisely the same result." Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47, 48, 91 S.Ct. 1292, 1293, 28 L.Ed.2d 590 (1971) (per curiam ). See also Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 255, 55 L.Ed. 246 (1911). 12 The CPSC and the requesters do not want "precisely the same result" in this litigation. It is true that the federal defendants have expressed the view that the reports in question should be released and in fact notified the District Court that absent the Delaware injunction the information would be disclosed. See 400 F.Supp. at 853, n. 14. That injunction has been issued, however, and the basic question in this case is the effect of that order on the requesters. The CPSC contends that the injunction prevents it from releasing the documents, while the requesters believe that an equitable decree obtained by the manufacturers in a suit in which those seeking disclosure were not parties cannot deprive them of their rights under the Freedom of Information Act. In short, the issue in this case is whether, given the existence of the Delaware injunction, the CPSC has violated the Freedom of Information Act at all. The federal defendants and the requesters sharply disagree on this question, as has been evidenced at every stage of this litigation. If the requesters prevail on the merits of their claim, the CPSC will be subject to directly contradictory court orders, a prospect which the federal defendants naturally wish to avoid. It cannot be said, therefore, that the parties desire "precisely the same result." The requirements of Art. III have been satisfied.9 III 13 The issue squarely presented is whether the Court of Appeals erred in holding that the requesters may obtain the accident reports under the Freedom of Information Act when the agency with possession of the documents has been enjoined from disclosing them by a Federal District Court. The terms of the Act and its legislative history demonstrate that the court below was in error. 14 The Freedom of Information Act gives federal district courts the jurisdiction "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld." 5 U.S.C. § 552(a)(4)(B). This section requires a showing of three components: the agency must have (1) improperly (2) withheld (3) agency records. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267. In this case the sole question is whether the first requirement, that the information has been "improperly" withheld, has been satisfied. 15 The statute provides no definition of the term "improperly." The legislative history of the Act, however, makes clear what Congress intended. The Freedom of Information Act was a revision of § 3, the "public information" section, of the Administrative Procedure Act, 5 U.S.C. § 1002 (1964 ed.). The prior law had failed to provide the desired access to information relied upon in Government decisionmaking, and in fact had become "the major statutory excuse for withholding Government records from public view." H.R.Rep.No.1497, 89th Cong., 2d Sess., 3 (1966) (hereinafter H.R.Rep.No.1497). See also id., at 4, 12; S.Rep.No.813, 89th Cong., 1st Sess., 3, 5 (1965) (hereinafter S.Rep.No. 813), U.S.Code Cong. & Admin.News 1966, p. 2418; EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). Section 3 had several vague phrases upon which officials could rely to refuse requests for disclosure: "in the public interest," "relating solely to the internal management of an agency," "for good cause." Even material on the public record was available only to "persons properly and directly concerned." These undefined phrases placed broad discretion in the hands of agency officials in deciding what information to disclose, and that discretion was often abused. The problem was exacerbated by the lack of an adequate judicial remedy for the requesters. See generally H.R.Rep.No.1497, at 4-6; S.Rep.No. 813, at 4-5; 112 Cong.Rec. 13642, reprinted in Freedom of Information Act Source Book, 93d Cong., 2d Sess., 47 (Comm.Print 1974) (remarks of Rep. Moss) (hereinafter Source Book); id., at 52 (remarks of Rep. King); id., at 71 (remarks of Rep. Rumsfeld); EPA v. Mink, supra, at 79, 93 S.Ct., at 832. 16 The Freedom of Information Act was intended "to establish a general philosophy of full agency disclosure," S.Rep.No.813, at 3, and to close the "loopholes which allow agencies to deny legitimate information to the public," ibid. The attention of Congress was primarily focused on the efforts of officials to prevent release of information in order to hide mistakes or irregularities committed by the agency. Ibid.; H.R.Rep.No.1497, at 6; Source Book 69 (remarks of Rep. Monagan); id., at 70 (remarks of Rep. Rumsfeld); id., at 73-74 (remarks of Rep. Hall), and on needless denials of information. Examples considered by Congress included the refusal of the Secretary of the Navy to release telephone directories, the decision of the National Science Foundation not to disclose cost estimates submitted by unsuccessful contractors as bids for a multimillion-dollar contract, and the Postmaster General's refusal to release the names of postal employees. See H.R.Rep.No.1497, at 5-6. 17 Thus Congress was largely concerned with the unjustified suppression of information by agency officials. S.Rep.No.813, at 5. Federal employees were denying requests for documents without an adequate basis for nondisclosure, and Congress wanted to curb this apparently unbridled discretion. Source Book 46-47 (remarks of Rep. Moss); id., at 61 (remarks of Rep. Fascell); Id., at 70 (remarks of Rep. Rumsfeld); id., at 71 (remarks of Rep. Skubitz); id., at 80 (remarks of Rep. Anderson). It is in this context that Congress gave the federal district courts under the Freedom of Information Act jurisdiction to order the production of "improperly" withheld agency records. It is enlightening that the Senate Report uses the terms "improperly" and "wrongfully" interchangeably. S.Rep.No.813, at 3, 5, 8. 18 The present case involves a distinctly different context. The CPSC has not released the documents sought here solely because of the orders issued by the Federal District Court in Delaware. At all times since the filing of the complaint in the instant action the agency has been subject to a temporary restraining order or a preliminary or permanent injunction barring disclosure. There simply has been no discretion for the agency to exercise. The concerns underlying the Freedom of Information Act are inapplicable, for the agency has made no effort to avoid disclosure; indeed, it is not the CPSC's decision to withhold the documents at all. 19 The conclusion that the information in this case is not being "improperly" withheld is further supported by the established doctrine that persons subject to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed, even if they have proper grounds to object to the order. See Howat v. Kansas, 258 U.S. 181, 189-190, 42 S.Ct. 277, 280-281, 66 L.Ed. 550 (1922); United States v. Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Walker v. City of Birmingham, 388 U.S. 307, 314-321, 87 S.Ct. 1824, 1828-1832, 18 L.Ed.2d 1210 (1967); Pasadena City Bd. of Education v. Spangler, 427 U.S. 424, 439, 96 S.Ct. 2697, 2706, 49 L.Ed.2d 599 (1976). There is no doubt that the Federal District Court in Delaware had jurisdiction to issue the temporary restraining orders and preliminary and permanent injunctions. Nor were those equitable decrees challenged as "only a frivolous pretense to validity," Walker v. City of Birmingham, supra, 388 U.S., at 315, 87 S.Ct., at 1829, although of course there is disagreement over whether the District Court erred in issuing the permanent injunction.10 Under these circumstances, the CPSC was required to obey the injunctions out of "respect for judicial process," 388 U.S., at 321, 87 S.Ct., at 1832. 20 There is nothing in the legislative history to suggest that in adopting the Freedom of Information Act to curb agency discretion to conceal information, Congress intended to require an agency to commit contempt of court in order to release documents. Indeed, Congress viewed the federal courts as the necessary protectors of the public's right to know. To construe the lawful obedience of an injunction issued by a federal district court with jurisdiction to enter such a decree as "improperly" withholding documents under the Freedom of Information Act would do violence to the common understanding of the term "improperly" and would extend the Act well beyond the intent of Congress. 21 We conclude that the CPSC has not "improperly" withheld the accident reports from the requesters under the Freedom of Information Act.11 The judgment of the United States Court of Appeals for the District of Columbia Circuit accordingly is 22 Reversed. 1 GTE Sylvania, Inc., RCA Corp., Magnavox Co., Zenith Radio Corp., Motorola, Inc., Warwick Electronics, Inc., and Aeronutronic Ford Corp. filed individual actions in the District of Delaware. Matsushita Electric Corp. of America, Sharp Electronic Corp., and Toshiba-America, Inc., filed actions in the Southern District of New York. General Electric Co. filed suit in the Northern District of New York. Admiral Corp. filed suit in the Western District of Pennsylvania. A 13th manufacturer, Teledyne Mid-America Corp., also brought suit, but that action was voluntarily dismissed. See GTE Sylvania Inc. v. Consumer Product Safety Comm'n, 438 F.Supp. 208, 210, n. 1 (Del.1977). 2 The theory of the so-called "reverse Freedom of Information Act" suit, that the exemptions to the Act were mandatory bars to disclosure and that therefore submitters of information could sue an agency under the Act in order to enjoin release of material, was squarely rejected in Chrysler Corp. v. Brown, 441 U.S. 281, 290-294, 99 S.Ct. 1705, 1711-1713, 60 L.Ed.2d 208 (1979). 3 The Court of Appeals noted that the CPSC took nine months from the date of the initial request for the documents to announce its determination that the material should be disclosed. In addition, the CPSC failed to make even pro forma opposition to the motions for temporary restraining orders and did not object to the manufacturers' requests for extensions of those orders. Finally, the CPSC moved to dismiss its own interlocutory appeal to the United States Court of Appeals for the Third Circuit, which motion was granted. 182 U.S.App.D.C., at 357, n. 27, 561 F.2d, at 355, n. 27. 4 The minute order entered by the Delaware District Court provided that "since the parties do not now know whether further action [after the grant of the preliminary injunction] is contemplated in this litigation, there is no need to maintain these cases as open litigation for statistical purposes." Accordingly, the Clerk of that court was ordered to "close these cases for statistical purposes." The entry specifically stated that "[n]othing contained herein shall be considered a dismissal or disposition of the matter and should further proceedings become necessary or desirable, any party may initiate in the same manner as if this minute order had not been entered." App. to Pet. for Cert. A108. 5 On petition for rehearing the Court of Appeals was informed that the Delaware case had only been marked "closed" for statistical purposes and that in fact the Delaware case had become active again soon after the Court of Appeals' initial ruling. The court nevertheless concluded that "there appears no reason why the litigation should not proceed here," 184 U.S.App.D.C. 146, 147, 565 F.2d 721, 722 (1977) (per curiam ). 6 The CPSC then moved the Federal District Court in Delaware to transfer that litigation to the District of Columbia pursuant to 28 U.S.C. § 1404. This motion was denied on the grounds that the Delaware action was much further advanced than the District of Columbia suit and a transfer at that late date would only delay a decision on the merits. GTE Sylvania Inc. v. Consumer Product Safety Comm'n, 438 F.Supp. 208 (Del.1977). 7 The CPSC had initially taken the position before the Court of Appeals that there was no Art. III case or controversy. However, when the case was first before this Court the CPSC announced that it was now persuaded there was a case or controversy, and it has continued to hold that view throughout this litigation. See Brief for Federal Respondents 21, n. 10; Consumers Union of United States, Inc. v. Consumer Product Safety Comm'n, 192 U.S.App.D.C. 93, 100, n. 33, 590 F.2d 1209, 1216, n. 33 (1978). 8 The United States Court of Appeals for the Third Circuit has affirmed the grant of the permanent injunction by the Federal District Court in Delaware, GTE Sylvania, Inc. v. Consumer Product Safety Comm'n, 598 F.2d 790 (1979), and we have granted certiorari to review that judgment. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 444 U.S. 979, 100 S.Ct. 479, 62 L.Ed.2d 405 (1979). 9 We need not reach the requesters' argument that the clear conflict between them and the petitioners would produce the necessary case of controversy even if there was no such controversy between the requesters and the federal defendants. We also need not discuss the suggestion of the Court of Appeals that the CPSC does not in fact agree with the requesters that the documents should be disclosed even absent the Delaware injunction. See n. 3, supra. 10 We intimate no view on that issue, which is raised in Consumer Product Safety Comm'n v. GTE Sylvania, Inc., No. 79-521, cert. granted, 444 U.S. 979, 100 S.Ct. 479, 62 L.Ed.2d 405 (1979). 11 We need not address the issue whether the principle of comity mandated that the District of Columbia court stay or dismiss the action because the Delaware court had jurisdiction over the manufacturers' suit prior to the filing of the requesters' complaint.

45

445 U.S. 388 100 S.Ct. 1202 63 L.Ed.2d 479 UNITED STATES PAROLE COMMISSION et al., Petitioners,v.John M. GERAGHTY. No. 78-572. Argued Oct. 2, 1979. Decided March 19, 1980. Syllabus Respondent, after twice being denied parole from a federal prison, brought suit against petitioners in Federal District Court challenging the validity of the United States Parole Commission's Parole Release Guidelines. The District Court denied respondent's request for certification of the suit as a class action on behalf of a class of "all federal prisoners who are or who will become eligible for release on parole," and granted summary judgment for petitioners on the merits. Respondent was released from prison while his appeal to the Court of Appeals was pending, but that court held that this did not render the case moot, and went on to hold, with respect to the question whether the District Court had erroneously denied class certification, that class certification would not be inappropriate, since the problems of overbroad classes and of a potential conflict of interest between respondent and other members of the putative class could be remedied by the mechanism of subclasses. Accordingly, the Court of Appeals reversed the denial of class certification and remanded the case to the District Court for an initial evaluation sua sponte of the proper subclasses. Held: An action brought on behalf of a class does not become moot upon expiration of the named plaintiff's substantive claim, even though class certification has been denied, since the proposed representative of the class retains a "personal stake" in obtaining class certification sufficient to assure that Art. III values are not undermined. If the appeal from denial of the class certification results in reversal of the denial, and a class subsequently is properly certified, the merits of the class claim then may be adjudicated pursuant to the holding in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532, that mootness of the named plaintiff's individual claim after a class has been duly certified does not render the action moot. Pp. 395-408. (a) The fact that a named plaintiff's substantive claims are mooted due to an occurrence other than a judgment on the merits, cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54; Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427, does not mean that all other issues in the case are mooted. A plaintiff who brings a class action presents two separate issues, one being the claim on the merits and the other being the claim that he is entitled to represent a class. "The denial of class certification stands as an adjudication of one of the issues litigated," Roper, at 336, 100 S.Ct., at 1172, and in determining whether the plaintiff may continue to press the class certification claim after the claim on the merits "expires," the nature of the "personal stake" in the class certification claim must be examined. P. 402. (b) The imperatives of a dispute capable of judicial resolution—sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions—can exist with respect to the class certification issue notwithstanding that the named plaintiff's claim on the merits has expired. Such imperatives are present in this case where the question whether class certification is appropriate remains as a concrete, sharply presented issue, and respondent continues vigorously to advocate his right to have a class certified. Pp. 403-404. (c) Respondent was a proper representative for the purpose of appealing the ruling denying certification of the class that he initially defined, and hence it was not improper for the Court of Appeals to consider whether the District Court should have granted class certification. Pp. 407. (d) The Court of Appeals' remand of the case for consideration of subclasses was a proper disposition, except that the burden of constructing subclasses is not upon the District Court but upon the respondent. Pp. 407-408. 3 Cir., 579 F.2d 238, vacated and remanded. Kent L. Jones, Washington, D.C., pro hac vice, by special leave of Court, for petitioners. Kenneth N. Flaxman, Chicago, Ill., for respondent. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 This case raises the question whether a trial court's denial of a motion for certification of a class may be reviewed on appeal after the named plaintiff's personal claim has become "moot." The United States Court of Appeals for the Third Circuit held that a named plaintiff, respondent here, who brought a class action challenging the validity of the United States Parole Commission's Parole Release Guidelines, could continue his appeal of a ruling denying class certification even though he had been released from prison while the appeal was pending. We granted certiorari, 440 U.S. 945, 99 S.Ct. 1420, 59 L.Ed.2d 632 (1979), to consider this issue of substantial significance, under Art. III of the Constitution, to class-action litigation,1 and to resolve the conflict in approach among the Courts of Appeals.2 2 * In 1973, the United States Parole Board adopted explicit Parole Release Guidelines for adult prisoners.3 These guidelines establish a "customary range" of confinement for various classes of offenders. The guidelines utilize a matrix, which combines a "parole prognosis" score (based on the prisoner's age at first conviction, employment background, and other personal factors) and an "offense severity" rating, to yield the "customary" time to be served in prison. 3 Subsequently, in 1976, Congress enacted the Parole Commission and Reorganization Act (PCRA), Pub.L. 94-233, 90 Stat. 219, 18 U.S.C. §§ 4201-4218. This Act provided the first legislative authorization for parole release guidelines. It required the newly created Parole Commission to "promulgate rules and regulations establishing guidelines for the powe[r] . . . to grant or deny an application or recommendation to parole any eligible prisoner." § 4203. Before releasing a prisoner on parole, the Commission must find, "upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner," that release "would not depreciate the seriousness of his offense or promote disrespect for the law" and that it "would not jeopardize the public welfare." § 4206(a). 4 Respondent John M. Geraghty was convicted in the United States District Court for the Northern District of Illinois of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951, and of making false material declarations to a grand jury, in violation of 18 U.S.C. § 1623 (1976 ed. and Supp. II).4 On January 25, 1974, two months after initial promulgation of the release guidelines, respondent was sentenced to concurrent prison terms of four years on the conspiracy count and one year on the false declarations count. The United States Court of Appeals for the Seventh Circuit affirmed respondent's convictions. United States v. Braasch, 505 F.2d 139 (1974), cert. denied sub nom. Geraghty v. United States, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). 5 Geraghty later, pursuant to a motion under Federal Rule of Criminal Procedure 35, obtained from the District Court a reduction of his sentence to 30 months. The court granted the motion because, in the court's view, application of the guidelines would frustrate the sentencing judge's intent with respect to the length of time Geraghty would serve in prison. United States v. Braasch, No. 72 CR 979 (ND Ill., Oct. 9, 1975), appeal dism'd and mandamus denied, 542 F.2d 442 (CA7 1976). 6 Geraghty then applied for release on parole. His first application was denied in January 1976 with the following explanation: 7 "Your offense behavior has been rated as very high severity. You have a salient factor score of 11. You have been in custody for a total of 4 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of 26-36 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that a decision at this consideration outside the guidelines does not appear warranted." App. 5. 8 If the customary release date applicable to respondent under the guidelines were adhered to, he would not be paroled before serving his entire sentence minus good-time credits. Geraghty applied for parole again in June 1976; that application was denied for the same reasons. He then instituted this civil suit as a class action in the United States District Court for the District of Columbia, challenging the guidelines as inconsistent with the PCRA and the Constitution, and questioning the procedures by which the guidelines were applied to his case. 9 Respondent sought certification of a class of "all federal prisoners who are or will become eligible for release on parole." Id., at 17. Without ruling on Geraghty's motion, the court transferred the case to the Middle District of Pennsylvania, where respondent was incarcerated. Geraghty continued to press his motion for class certification, but the court postponed ruling on the motion until it was prepared to render a decision on cross-motions for summary judgment. 10 The District Court subsequently denied Geraghty's request for class certification and granted summary judgment for petitioners on all the claims Geraghty asserted. 429 F.Supp. 737 (1977). The court regarded respondent's action as a petition for a writ of habeas corpus, to which Federal Rule of Civil Procedure 23 applied only by analogy. It denied class certification as "neither necessary nor appropriate." 429 F.Supp., at 740. A class action was "necessary" only to avoid mootness. The court found such a consideration not comprehended by Rule 23. It found class certification inappropriate because Geraghty raised certain individual issues and, inasmuch as some prisoners might be benefited by the guidelines, because his claims were not typical of the entire proposed class. 429 F.Supp., at 740-741. On the merits, the court ruled that the guidelines are consistent with the PCRA and do not offend the Ex Post Facto Clause, U.S.Const., Art. I, § 9, cl. 3. 429 F.Supp., at 741-744. 11 Respondent, individually "and on behalf of a class," appealed to the United States Court of Appeals for the Third Circuit. App. 29. Thereafter, another prisoner, Becher, who had been denied parole through application of the guidelines and who was represented by Geraghty's counsel, moved to intervene. Becher sought intervention to ensure that the legal issue raised by Geraghty on behalf of the class "will not escape review in the appeal in this case." Pet. to Intervene After Judgment 2. The District Court, concluding that the filing of Geraghty's notice of appeal had divested it of jurisdiction, denied the petition to intervene. Becher then filed a timely notice of appeal from the denial of intervention. The two appeals were consolidated. 12 On June 30, 1977, before any brief had been filed in the Court of Appeals, Geraghty was mandatorily released from prison; he had served 22 months of his sentence, and had earned good-time credits for the rest. Petitioners then moved to dismiss the appeals as moot. The appellate court reserved decision of the motion to dismiss until consideration of the merits. 13 The Court of Appeals, concluding that the litigation was not moot, reversed the judgment of the District Court and remanded the case for further proceedings. 579 F.2d 238 (CA3 1978). If a class had been certified by the District Court, mootness of respondent Geraghty's personal claim would not have rendered the controversy moot. See e. g., Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). The Court of Appeals reasoned that an erroneous denial of a class certification should not lead to the opposite result. 579 F.2d, at 248-252. Rather, certification of a "certifiable" class, that erroneously had been denied, relates back to the original denial and thus preserves jurisdiction. Ibid. 14 On the question whether certification erroneously had been denied, the Court of Appeals held that necessity is not a prerequisite under Rule 23. 579 F.2d at 252. The court expressed doubts about the District Court's finding that class certification was "inappropriate." While Geraghty raised some claims not applicable to the entire class of prisoners who are or will become eligible for parole, the District Court could have "certif[ied] certain issues as subject to class adjudication, and . . . limit[ed] overbroad classes by the use of sub-classes." Id., at 253. Failure "to consider these options constituted a failure properly to exercise discretion." Ibid. "Indeed, this authority may be exercised sua sponte." Ibid. The Court of Appeals also held that refusal to certify because of a potential conflict of interest between Geraghty and other members of the putative class was error. The subclass mechanism would have remedied this problem as well. Id., at 252-253. Thus, the Court of Appeals reversed the denial of class certification and remanded the case to the District Court for an initial evaluation of the proper subclasses. Id., at 254. The court also remanded the motion for intervention. Id., at 245, n. 21.5 15 In order to avoid "improvidently dissipat[ing] judicial effort," id., at 254, the Court of Appeals went on to consider whether the trial court had decided the merits of respondent's case properly. The District Court's entry of summary judgment was found to be error because "if Geraghty's recapitulation of the function and genesis of the guidelines is supported by the evidence," the guidelines "may well be" unauthorized or unconstitutional. Id., at 259, 268. Thus, the dispute on the merits also was remanded for further factual development. II 16 Article III of the Constitution limits federal "Judicial Power," that is, federal-court jurisdiction, to "Cases" and "Controversies." This case-or-controversy limitation serves "two complementary" purposes. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968). It limits the business of federal courts to "questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process," and it defines the "role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government." Ibid. Likewise, mootness has two aspects: "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). 17 It is clear that the controversy over the validity of the Parole Release Guidelines is still a "live" one between petitioners and at least some members of the class respondent seeks to represent. This is demonstrated by the fact that prisoners currently affected by the guidelines have moved to be substituted, or to intervene, as "named" respondents in this Court. See n. 1, supra. We therefore are concerned here with the second aspect of mootness, that is, the parties' interest in the litigation. The Court has referred to this concept as the "personal stake" requirement. E. g., Franks v. Bowman Transportation Co., 424 U.S. 747, 755, 96 S.Ct. 1251, 1259, 47 L.Ed.2d 444 (1976); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). 18 The personal-stake requirement relates to the first purpose of the case-or-controversy doctrine—limiting judicial power to disputes capable of judicial resolution. The Court in Flast v. Cohen, 392 U.S., at 100-101, 88 S.Ct., at 1953, stated: 19 "The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. . . . Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has 'a personal stake in the outcome of the controversy,' Baker v. Carr, [369 U.S.], at 204, [82 S.Ct., at 703] and whether the dispute touches upon 'the legal relations of parties having adverse legal interests,' Aetna Life Insurance Co. v. Haworth, [300 U.S. 227], at 240-241, [57 S.Ct., at 464, 81 L.Ed. 617]." 20 See also Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 216-218, 94 S.Ct. 2925, 2929-2930, 41 L.Ed.2d 706 (1974). 21 The "personal stake" aspect of mootness doctrine also serves primarily the purpose of assuring that federal courts are presented with disputes they are capable of resolving. One commentator has defined mootness as "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973). III 22 On several occasions the Court has considered the application of the "personal stake" requirement in the class-action context. In Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), it held that mootness of the named plaintiff's individual claim after a class has been duly certified does not render the action moot. It reasoned that "even though appellees . . . might not again enforce the Iowa durational residency requirement against [the class representative], it is clear that they will enforce it against those persons in the class that appellant sought to represent and that the District Court certified." Id., at 400, 95 S.Ct., at 557, 558. The Court stated specifically that an Art. III case or controversy "may exist . . . between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot." Id., at 402, 95 S.Ct., at 559.6 23 Although one might argue that Sosna contains at least an implication that the critical factor for Art. III purposes is the timing of class certification, other cases, applying a "relation back" approach, clearly demonstrate that timing is not crucial. When the claim on the merits is "capable of repetition, yet evading review," the named plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation. E. g., Gerstein v. Pugh, 420 U.S. 103, 110, n. 11, 95 S.Ct. 854, 861, n.11, 43 L.Ed.2d 54 (1975). The "capable of repetition, yet evading review" doctrine to be sure, was developed outside the class-action context. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 514-515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). But it has been applied where the named plaintiff does have a personal stake at the outset of the lawsuit, and where the claim may arise again with respect to that plaintiff; the litigation then may continue notwithstanding the named plaintiff's current lack of a personal stake. See, e. g., Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Roe v. Wade, 410 U.S. 113, 123-125, 93 S.Ct. 705, 711-712, 35 L.Ed.2d 147 (1973). Since the litigant faces some likelihood of becoming involved in the same controversy in the future, vigorous advocacy can be expected to continue. 24 When, however, there is no chance that the named plaintiff's expired claim will reoccur, mootness still can be avoided through certification of a class prior to expiration of the named plaintiff's personal claim. e. g., Franks v. Bowman Transportation Co., 424 U.S., at 752-757, 96 S.Ct., at 1258-1260. See Kremens v. Bartley, 431 U.S. 119, 129-130, 97 S.Ct. 1709, 1715, 52 L.Ed.2d 184 (1977). Some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires. The Court considered this possibility in Gerstein v. Pugh, 420 U.S., at 110, n. 11, 95 S.Ct., at 861 n. 11. Gerstein was an action challenging pretrial detention conditions. The Court assumed that the named plaintiffs were no longer in custody awaiting trial at the time the trial court certified a class of pretrial detainees. There was no indication that the particular named plaintiffs might again be subject to pretrial detention. Nonetheless, the case was held not to be moot because: 25 "The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case." Ibid. 26 See also Sosna v. Iowa, 419 U.S., at 402, n. 11, 95 S.Ct., at 861, n. 11. 27 In two different contexts the Court has stated that the proposed class representative who proceeds to a judgment on the merits may appeal denial of class certification. First, this assumption was "an important ingredient," Deposit Guaranty Nat. Bank v. Roper, 445 U.S., at 338, 100 S.Ct., at 1173, in the rejection of interlocutory appeals, "as of right," of class certification denials. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 470, n. 15, 98 S.Ct. 2454, 2459 n. 15, 57 L.Ed.2d 351 (1978). The Court reasoned that denial of class status will not necessarily be the "death knell" of a small-claimant action, since there still remains "the prospect of prevailing on the merits and reversing an order denying class certification." Ibid. 28 Second, in United Airlines, Inc. v. McDonald, 432 U.S. 385, 393-395, 97 S.Ct. 2464, 2469-2471, 53 L.Ed.2d 423 (1977), the Court held that a putative class member may intervene, for the purpose of appealing the denial of a class certification motion, after the named plaintiffs' claims have been satisfied and judgment entered in their favor. Underlying that decision was the view that "refusal to certify was subject to appellate review after final judgment at the behest of the named plaintiffs." Id., at 393, 97 S.Ct., at 2469. And today, the Court holds that named plaintiffs whose claims are satisfied through entry of judgment over their objections may appeal the denial of a class certification ruling. Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427. 29 Gerstein, McDonald, and Roper are all examples of cases found not to be moot, despite the loss of a "personal stake" in the merits of the litigation by the proposed class representative. The interest of the named plaintiffs in Gerstein was precisely the same as that of Geraghty here. Similarly, after judgment had been entered in their favor, the named plaintiffs in McDonald had no continuing narrow personal stake in the outcome of the class claims. And inRoper the Court points out that an individual controversy is rendered moot, in the strict Art. III sense, by payment and satisfaction of a final judgment. 445 U.S., at 333, 100 S.Ct., at 1171. 30 These cases demonstrate the flexible character of the Art. III mootness doctrine.7 As has been noted in the past, Art. III justiciability is "not a legal concept with a fixed content or susceptible of scientific verification." Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961) (plurality opinion). "[T]he justiciability doctrine [is] one of uncertain and shifting contours." Flast v. Cohen, 392 U.S., at 97, 88 S.Ct., at 1951. IV 31 Perhaps somewhat anticipating today's decision in Roper, petitioners argue that the situation presented is entirely different when mootness of the individual claim is caused by "expiration" of the claim, rather than by a judgment on the claim. They assert that a proposed class representative who individually prevails on the merits still has a "personal stake" in the outcome of the litigation, while the named plaintiff whose claim is truly moot does not. In the latter situation, where no class has been certified, there is no party before the court with a live claim, and it follows, it is said, that we have no jurisdiction to consider whether a class should have been certified. Brief for Petitioners 37-39. 32 We do not find this distinction persuasive. As has been noted earlier, Geraghty's "personal stake" in the outcome of the litigation is, in a practical sense, no different from that of the putative class representatives in Roper. Further, the opinion in Roper indicates that the approach to take in applying Art. III is issue by issue. "Nor does a confession of judgment by defendants on less than all the issues moot an entire case; other issues in the case may be appealable. We can assume that a district court's final judgment fully satisfying named plaintiffs' private substantive claims would preclude their appeal on that aspect of the final judgment; however, it does not follow that this circumstance would terminate the named plaintiffs' right to take an appeal on the issue of class certification." 445 U.S., at 333, 100 S.Ct., at 1171. See also United Airlines, Inc. v. McDonald, 432 U.S., at 392, 97 S.Ct., at 2468; Powell v. McCormack, 395 U.S., at 497, 89 S.Ct., at 1951. 33 Similarly, the fact that a named plaintiff's substantive claims are mooted due to an occurrence other than a judgment on the merits does not mean that all the other issues in the case are mooted. A plaintiff who brings a class action presents two separate issues for judicial resolution. One is the claim on the merits; the other is the claim that he is entitled to represent a class. "The denial of class certification stands as an adjudication of one of the issues litigated," Roper, 445 U.S., at 336, 100 S.Ct., at 1172. We think that in determining whether the plaintiff may continue to press the class certification claim, after the claim on the merits "expires," we must look to the nature of the "personal stake" in the class certification claim. Determining Art. III's "uncertain and shifting contours," see Flast v. Cohen, 392 U.S., at 97, 88 S.Ct., at 1951, with respect to nontraditional forms of litigation, such as the class action, requires reference to the purposes of the case-or-controversy requirement. 34 Application of the personal-stake requirement to a procedural claim, such as the right to represent a class, is not automatic or readily resolved. A "legally cognizable interest," as the Court described it in Powell v. McCormack, 395 U.S., at 496, 89 S.Ct., at 1950, in the traditional sense rarely ever exists with respect to the class certification claim.8 The justifications that led to the development of the class action include the protection of the defendant from inconsistent obligations, the protection of the interests of absentees, the provision of a convenient and economical means for disposing of similar lawsuits, and the facilitation of the spreading of litigation costs among numerous litigants with similar claims. See, e. g., Advisory Committee Notes on Fed.Rule Civ.Proc. 23, 28 U.S.C.App., pp. 427-429; Note, Developments in the Law, Class Actions, 89 Harv.L.Rev. 1318, 1321-1323, 1329-1330 (1976). Although the named representative receives certain benefits from the class nature of the action, some of which are regarded as desirable and others as less so,9 these benefits generally are byproducts of the class-action device. In order to achieve the primary benefits of class suits, the Federal Rules of Civil Procedure give the proposed class representative the right to have a class certified if the requirements of the Rules are met. This "right" is more analogous to the private attorney general concept than to the type of interest traditionally thought to satisfy the "personal stake" requirement. See Roper, 445 U.S., at 338, 100 S.Ct., at 1173-1174. 35 As noted above, the purpose of the "personal stake" requirement is to assure that the case is in a form capable of judicial resolution. The imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions. Franks v. Bowman Transportation Co., 424 U.S., at 753-756, 96 S.Ct., at 1253-1260; Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703; Poe v. Ullman, 367 U.S., at 503, 81 S.Ct., at 1755 (plurality opinion). We conclude that these elements can exist with respect to the class certification issue notwithstanding the fact that the named plaintiff's claim on the merits has expired. The question whether class certification is appropriate remains as a concrete, sharply presented issue. In Sosna v. Iowa it was recognized that a named plaintiff whose claim on the merits expires after class certification may still adequately represent the class. Implicit in that decision was the determination that vigorous advocacy can be assured through means other than the traditional requirement of a "personal stake in the outcome." Respondent here continues vigorously to advocate his right to have a class certified. 36 We therefore hold that an action brought on behalf of a class does not become moot upon expiration of the named plaintiff's substantive claim, even though class certification has been denied.10 The proposed representative retains a "personal stake" in obtaining class certification sufficient to assure that Art. III values are not undermined. If the appeal results in reversal of the class certification denial, and a class subsequently is properly certified, the merits of the class claim then may be adjudicated pursuant to the holding in Sosna. 37 Our holding is limited to the appeal of the denial of the class certification motion. A named plaintiff whose claim expires may not continue to press the appeal on the merits until a class has been properly certified. See Roper, 445 U.S., at 336-337, 100 S.Ct., at 1173. If, on appeal, it is determined that class certification properly was denied, the claim on the merits must be dismissed as moot.11 38 Our conclusion that the controversy here is not moot does not automatically establish that the named plaintiff is entitled to continue litigating the interests of the class. "[I]t does shift the focus of examination from the elements of justiciability to the ability of the named representative to 'fairly and adequately protect the interests of the class.' Rule 23(a)." Sosna v. Iowa, 419 U.S., at 403, 95 S.Ct., at 559. We hold only that a case or controversy still exists. The question of who is to represent the class is a separate issue.12 39 We need not decide here whether Geraghty is a proper representative for the purpose of representing the class on the merits. No class as yet has been certified. Upon remand, the District Court can determine whether Geraghty may continue to press the class claims or whether another representative would be appropriate. We decide only that Geraghty was a proper representative for the purpose of appealing the ruling denying certification of the class that he initially defined. Thus, it was not improper for the Court of Appeals to consider whether the District Court should have granted class certification. V 40 We turn now to the question whether the Court of Appeals' decision on the District Court's class certification ruling was proper. Petitioners assert that the Court of Appeals erred in requiring the District Court to consider the possibility of certifying subclasses sua sponte. Petitioners strenuously contend that placing the burden of identifying and constructing subclasses on the trial court creates unmanageable difficulties. Brief for Petitioners 43-51. We feel that the Court of Appeals' decision here does not impose undue burdens on the district courts. Respondent had no real opportunity to request certification of subclasses after the class he proposed was rejected. The District Court denied class certification at the same time it rendered its adverse decision on the merits. Requesting subclass certification at that time would have been a futile act. The District Court was not about to invest effort in deciding the subclass question after it had ruled that no relief on the merits was available. The remand merely gives respondent the opportunity to perform his function in the adversary system. On remand, however, it is not the District Court that is to bear the burden of constructing subclasses. That burden is upon the respondent and it is he who is required to submit proposals to the court. The court has no sua sponte obligation so to act. With this modification, the Court of Appeals' remand of the case for consideration of subclasses was a proper disposition. 41 In would be inappropriate for this Court to reach the merits of this controversy in the present posture of the case. Our holding that the case is not moot extends only to the appeal of the class certification denial. If the District Court again denies class certification, and that decision is affirmed, the controversy on the merits will be moot. Furthermore, although the Court of Appeals commented upon the merits for the sole purpose of avoiding waste of judicial resources, it did not reach a final conclusion on the validity of the guidelines. Rather, it held only that summary judgment was improper and remanded for further factual development. Given the interlocutory posture of the case before us, we must defer decision on the merits of respondent's case until after it is determined affirmatively that a class properly can be certified. 42 The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. 43 It is so ordered. 44 Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice REHNQUIST join, dissenting. 45 Respondent filed this suit as a class action while he was serving time in a federal prison. He sought to represent a class composed of "all federal prisoners who are or who will become eligible for release on parole." App. 17. The District Court denied class certification and granted summary judgment for petitioners. Respondent appealed, but before briefs were filed, he was unconditionally released from prison. Petitioners then moved to dismiss the appeal as moot. The Court of Appeals denied the motion, reversed the judgment of the District Court, and remanded the case for further proceedings. Conceding that respondent's personal claim was moot, the Court of Appeals nevertheless concluded that respondent properly could appeal the denial of class certification. The Court today agrees with this conclusion. 46 The Court's analysis proceeds in two steps. First, it says that mootness is a "flexible" doctrine which may be adapted as we see fit to "nontraditional" forms of litigation. Ante, at 400-402. Second, the Court holds that the named plaintiff has a right "analogous to the private attorney general concept" to appeal the denial of class certification even when his personal claim for relief is moot. Ante, at 402-404. Both steps are significant departures from settled law that rationally cannot be confined to the narrow issue presented in this case. Accordingly, I dissent. 47 * As the Court observes, this case involves the "personal stake" aspect of the mootness doctrine. Ante, at 396. There is undoubtedly a "live" issue which an appropriate plaintiff could present for judicial resolution. The question is whether respondent, who has no further interest in this action, nevertheless may—through counsel—continue to litigate it. 48 Recent decisions of this Court have considered the personal stake requirement with some care. When the issue is presented at the outset of litigation as a question of standing to sue, we have held that the personal stake requirement has a double aspect. On the one hand, it derives from Art. III limitations on the power of the federal courts. On the other, it embodies additional, self-imposed restraints on the exercise of judicial power. E. g., Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). The prudential aspect of standing aptly is described as a doctrine of uncertain contours. Ante, at 402. But the constitutional minimum has been given definite content: "In order to satisfy Art. III, the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979).1 Although noneconomic injuries can confer standing, the Court has rejected all attempts to substitute abstract concern with a subject—or with the rights of third parties—for "the concrete injury required by Art. III." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 40, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976).2 49 As the Court notes today, the same threshold requirement must be satisfied throughout the action. Ante, at 397; see Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 558, 42 L.Ed.2d 532 (1975). Prudential considerations not present at the outset may support continuation of an action in which the parties have invested substantial resources and generated a factual record.3 But an actual case or controversy in the constitutional sense " 'must be extant at all stages of review.' " Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975), quoting Steffel v. Thompson, 415 U.S. 452, 459, n. 10, 94 S.Ct. 1209, 1216, n. 10, 39 L.Ed.2d 505 (1974). Cases that no longer " 'touc[h] the legal relations of parties having adverse legal interests' " are moot because "federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 406, 30 L.Ed.2d 413 (1971) (per curiam ), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 463-464, 81 L.Ed. 617 (1937). The limitation flows directly from Art. III. DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705, 40 L.Ed.2d 164 (1974) (per curiam ).4 50 Since the question is one of power, the practical importance of review cannot control. Sosna v. Iowa, supra, 419 U.S., at 401, n. 9, 95 S.Ct., at 558, n. 9; Richardson v. Ramirez, 418 U.S. 24, 36, 94 S.Ct. 2655, 2662, 41 L.Ed.2d 551 (1974); United States v. Alaska S. S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920). Nor can public interest in the resolution of an issue replace the necessary individual interest in the outcome. See DeFunis v. Odegaard, supra, 416 U.S. at 316, 94 S.Ct. at 1705. Collateral consequences of the original wrong may supply the individual interest in some circumstances. Sibron v. New York, 392 U.S. 40, 53-58, 88 S.Ct. 1889, 1897-1900, 20 L.Ed.2d 917 (1968). So, too, may the prospect of repeated future injury so inherently transitory that it is unlikely to outlast the normal course of litigation. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The essential and irreducible constitutional requirement is simply a nonfrivolous showing of continuing or threatened injury at the hands of the adversary. 51 These cases demonstrate, contrary to the Court's view today, that the core requirement of a personal stake in the outcome is not "flexible." Indeed, the rule barring litigation by those who have no interest of their own at stake is applied so rigorously that it has been termed the "one major proposition" in the law of standing to which "the federal courts have consistently adhered . . . without exception." Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 617 (1968) (emphasis deleted).5 We have insisted upon the personal stake requirement in mootness and standing cases because it is embedded in the case-or-controversy limitation imposed by the Constitution, "founded in concern about the proper—and properly limited—role of the courts in a democratic society." Warth v. Seldin, supra, at 498, 95 S.Ct., at 2205. In this way we have, until today, "prevent[ed] the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders." United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973); see Simon v. Eastern Kentucky Welfare Rights Org., supra, at 60, 96 S.Ct., at 1934 (BRENNAN, J., concurring in judgment); Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972). II 52 The foregoing decisions establish principles that the Court has applied consistently. These principles were developed outside the class action context. But Art. III contains no exception for class actions. Thus, we have held that a putative class representative who alleges no individual injury "may [not] seek relief on behalf of himself or any other member of the class." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Only after a class has been certified in accordance with Rule 23 can it "acquir[e] a legal status separate from the interest asserted by [the named plaintiff]." Sosna v. Iowa, supra, 419 U.S. at 399, 95 S.Ct. at 557. "Given a properly certified class," the live interests of unnamed but identifiable class members may supply the personal stake required by Art. III when the named plaintiff's individual claim becomes moot. Franks v. Bowman Transportation Co., 424 U.S. 747, 755-756, 96 S.Ct. 1251, 1259-1260, 47 L.Ed.2d 444 (1976); Sosna v. Iowa, supra, 419 U.S. at 402, 95 S.Ct. at 558. 53 This case presents a fundamentally different situation. No class has been certified, and the lone plaintiff no longer has any personal stake in the litigation.6 In the words of his own lawyer, respondent "can obtain absolutely no additional personal relief" in this case. Tr. of Oral Arg. 25. Even the lawyer has evinced no interest in continuing to represent respondent as named plaintiff, as distinguished from other persons presently incarcerated. Ibid.7 In these circumstances, Art. III and the precedents of this Court require dismissal. But the Court views the case differently, and constructs new doctrine to breathe life into a lawsuit that has no plaintiff. 54 The Court announces today for the first time—and without attempting to reconcile the many cases to the contrary—that there are two categories of "the Art. III mootness doctrine": "flexible" and "less flexible." Ante, at 400, and n. 7. The Court then relies on cases said to demonstrate the application of "flexible" mootness to class action litigation. The cases principally relied upon are Gerstein v. Pugh, 420 U.S. 103, 110-111, n. 11, 95 S.Ct. 854, 861, n. 11, 43 L.Ed.2d 54 (1975), United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), and today's decision in Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427. Each case is said to show that a class action is not mooted by the loss of the class representative's personal stake in the outcome of the lawsuit, even though no class has been certified. Ante, at 400. Sosna itself is cited for the proposition that the requirements of Art. III may be met "through means other than the traditional requirement of a 'personal stake in the outcome.' " Ante, at 404. In my view, the Court misreads these precedents. 55 * In Sosna, the Court simply acknowledged that actual class certification gives legal recognition to additional adverse parties. Cf. Aetna Life Ins. Co. v. Haworth, 300 U.S., at 240, 57 S.Ct., at 463.8 And in Gerstein, the Court applied a rule long established, outside the class action context, by cases that never have been thought to erode the requirement of a personal stake in the outcome. Gerstein held that a class action challenging the constitutionality of pretrial detention procedures could continue after the named plaintiffs' convictions had brought their detentions to an end. The Court did not suggest that a personal stake in the outcome on the merits was unnecessary. The action continued only because of the transitory nature of pretrial detention, which placed the claim within "that narrow class of cases" that are "distinctly 'capable of repetition, yet evading review.' " 420 U.S., at 110, n. 11, 95 S.Ct. 861, n. 11.9 56 McDonald and Roper sanction some appeals from the denial of class certification notwithstanding satisfaction of the class representative's claim on the merits. But neither case holds that Art. III may be satisfied in the absence of a personal stake in the outcome. In McDonald, a putative class member intervened within the statutory time limit to appeal the certification ruling. 432 U.S., at 390, 97 S.Ct., at 2467.10 Because the Court found that her claim was not time-barred, the intervenor in McDonald possessed the stake necessary to pursue the action. Indeed, the Court devoted its entire opinion to showing that the intervenor's claim for relief had not expired.11 At most, McDonald holds only that an action which is kept alive by interested parties within prescribed periods of limitations does not "die" in an Art. III sense. 57 There is dictum in McDonald that the "refusal to certify was subject to appellate review after final judgment at the behest of the named plaintiffs . . . ." 432 U.S., at 393, 97 S.Ct., at 2469. That gratuitous sentence, repeated in Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 470, n. 15, 98 S.Ct. 2454, 2459, n. 15, 57 L.Ed.2d 351 (1978), apparently is elevated by the Court's opinion in this case to the status of new doctrine. There is serious tension between this new doctrine and the much narrower reasoning adopted today in Roper. In Roper the Court holds that the named plaintiffs, who have refused to accept proffered individual settlements, retain a personal stake in sharing anticipated litigation costs with the class. 445 U.S., at 334, n. 6, 100 S.Ct., at 1171, n. 6, 1173. Finding that Art. III is satisfied by this alleged economic interest, Roper reasons that the rules of federal practice governing appealability permit a party to obtain review of certain procedural rulings that are collateral to a generally favorable judgment. See 443 U.S., at 333-334, 336, 100 S.Ct., at 1171, 1172-1173. The Court concludes that the denial of class certification falls within this category, as long as the named plaintiffs "assert a continuing stake in the outcome of the appeal." 445 U.S., at 336, 100 S.Ct., at 1172. 58 It is far from apparent how Roper can be thought to support the decision in this case. Indeed, the opinion by THE CHIEF JUSTICE in Roper reaffirms the obligation of a federal court to dismiss an appeal when the parties no longer retain the personal stake in the outcome required by Art. III. Ibid. Here, there is not even a speculative interest in sharing costs, and respondent affirmatively denies that he retains any stake or personal interest in the outcome of his appeal. See supra, at 413-414. Thus, a fact that was critical to the analysis in Roper is absent in this case. One can disagree with that analysis yet conclude that Roper affords no support for the Court's ruling here. B 59 The cases cited by the Court as "less flexible"—and therefore less authoritative—apply established Art. III doctrine in cases closely analogous to this one. Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975) (per curiam ); Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam ); Pasadena City Board of Education v. Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 2702, 49 L.Ed.2d 599 (1976). As they are about to become second-class precedents, these cases are relegated to a footnote. Ante, at 400-401, n. 7. But the cases are recent and carefully considered decisions of this Court. They applied long-settled principles of Art. III jurisprudence. And no Justice who participated in them suggested the distinction drawn today. The Court's backhanded treatment of these "less flexible" cases ignores their controlling relevance to the issue presented here. 60 In Jacobs, six named plaintiffs brought a class action to challenge certain high school regulations. The District Court stated on the record that class treatment was appropriate and that the plaintiffs were proper representatives, but the court failed to comply with Rule 23. After this Court granted review, we were informed that the named plaintiffs had graduated. We held that the action was entirely moot because the "class action was never properly certified nor the class properly identified by the District Court." 420 U.S., at 130, 95 S.Ct., at 850.12 Since the faulty certification prevented the class from acquiring separate legal status, Art. III required a dismissal. We reached precisely the same conclusion in Spangler, an action saved from mootness only by the timely intervention of a third party. 427 U.S., at 430-431, 96 S.Ct., at 2702. See also Baxter v. Palmigiano, 425 U.S. 308, 310, n. 1, 96 S.Ct. 1551, 1554, n. 1, 47 L.Ed.2d 810 (1976). And in Bradford, where the District Court had denied certification outright, the Court held that the named plaintiff's release from prison required the dismissal of his complaint about parole release procedures. 423 U.S., at 149, 96 S.Ct., at 348. See also Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8, 98 S.Ct. 1554, 1559, 56 L.Ed.2d 30 (1978). 61 The Court suggests that Jacobs and Spangler may be distinguished because the plaintiffs there were not appealing the denial of class certification. The Court overlooks the fact that in each case the class representatives were defending a judgment on the merits from which the defendants had appealed. The plaintiff/respondents continued vigorously to assert the claims of the class. They did not take the procedural route of appealing a denial of certification only because the District Court had granted—albeit defectively—class status. We chose not to remand for correction of the oral certification order in Jacobs because we recognized that the putative class representative had suffered no injury that could be redressed by adequate certification. Underlying Jacobs, and Bradford as well, is the elementary principle that no one has a personal stake in obtaining relief for third parties, through the mechanism of class certification or otherwise.13 The Court rejects that principle today. III 62 While the Court's new concept of "flexible" mootness is unprecedented, the content given that concept is even more disturbing. The Court splits the class aspects of this action into two separate "claims": (i) that the action may be maintained by respondent on behalf of a class, and (ii) that the class is entitled to relief on the merits. Since no class has been certified, the Court concedes that the claim on the merits is moot. Ante, at 404, 408. But respondent is said to have a personal stake in his "procedural claim" despite his lack of a stake in the merits. 63 The Court makes no effort to identify any injury to respondent that may be redressed by, or any benefit to respondent that may accrue from, a favorable ruling on the certification question.14 Instead, respondent's "personal stake" is said to derive from two factors having nothing to do with concrete injury or stake in the outcome. First, the Court finds that the Federal Rules of Civil Procedure create a "right," "analogous to the private attorney general concept," to have a class certified. Second, the Court thinks that the case retains the "imperatives of a dispute capable of judicial resolution," which are identified as (i) a sharply presented issue, (ii) a concrete factual setting, and (iii) a self-interested party actually contesting the case. Ante, at 403.15 64 The Court's reliance on some new "right" inherent in Rule 23 is misplaced. We have held that even Congress may not confer federal-court jurisdiction when Art. III does not. Gladstone, Realtors v. Village of Bellwood, 441 U.S., at 100, 99 S.Ct., at 1608; O'Shea v. Littleton, 414 U.S., at 494, and n. 2, 94 S.Ct., at 674, and n. 2; see Marbury v. Madison, 1 Cranch 137, 175-177, 5 U.S. 137, 175-177, 2 L.Ed. 60 (1803). Far less so may a rule of procedure which "shall not be construed to extend . . . the jurisdiction of the United States district courts." Fed.Rule Civ.Proc. 82. Moreover, the "private attorney general concept" cannot supply the personal stake necessary to satisfy Art. III. It serves only to permit litigation by a party who has a stake of his own but otherwise might be barred by prudential standing rules. See Warth v. Seldin, 422 U.S., at 501, 95 S.Ct. at 2206; Sierra Club v. Morton, 405 U.S., at 737-738, 92 S.Ct. at 1367-1368. 65 Since neither Rule 23 nor the private attorney general concept can fill the jurisdictional gap, the Court's new perception of Art. III requirements must rest entirely on its tripartite test of concrete adverseness. Although the components of the test are no strangers to our Art. III jurisprudence, they operate only in " 'cases confessedly within [the Court's] jurisdiction.' " Franks v. Bowman Transportion Co., 424 U.S., at 755-756, and n. 8, 96 S.Ct., at 1260, and n. 8, quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968). The Court cites no decision that has premised jurisdiction upon the bare existence of a sharply presented issue in a concrete and vigorously argued case, and I am aware of none.16 Indeed, each of these characteristics is sure to be present in the typical "private attorney general" action brought by a public-spirited citizen.17 Although we have refused steadfastly to countenance the "public action," the Court's redefinition of the personal stake requirement leaves no principled basis for that practice.18 66 The Court reasons that its departure from precedent is compelled by the difficulty of identifying a personal stake in a "procedural claim," particularly in "nontraditional forms of litigation." Ante, at 402. But the Court has created a false dilemma. As noted in Roper, class certification issues are "ancillary to the litigation of substantive claims." 445 U.S., at 332, 100 S.Ct., at 1170. Any attempt to identify a personal stake in such ancillary "claims" often must end in frustration, for they are not claims in any ordinary sense of the word. A motion for class certification, like a motion to join additional parties or to try the case before a jury instead of a judge, seeks only to present a substantive claim in a particular context. Such procedural devices generally have no value apart from their capacity to facilitate a favorable resolution of the case on the merits. Accordingly, the moving party is neither expected nor required to assert an interest in them independent of his interest in the merits. 67 Class actions may advance significantly the administration of justice in appropriate cases. Indeed, the class action is scarcely a new idea. Rule 23 codifies, and was intended to clarify, procedures for dealing with a form of action long known in equity. See 1 H. Newberg, Class Actions § 1004 (1977). That federal jurisdiction can attach to the class aspect of litigation involving individual claims has never been questioned. But even when we deal with truly new procedural devices, our freedom to "adapt" Art. III is limited to the recognition of different " 'means for presenting a case or controversy otherwise cognizable by the federal courts.' " Aetna Life Ins. Co. v. Haworth, 300 U.S., at 240, 57 S.Ct., at 464 (Declaratory Judgment Act), quoting Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S. 249, 264, 53 S.Ct. 345, 348, 77 L.Ed. 730 (1933) (emphasis added). The effect of mootness on the vitality of a device like the class action may be a relevant prudential consideration.19 But it cannot provide a plaintiff when none is before the Court, for we are powerless to assume jurisdiction in violation of Art. III.20 IV 68 In short, this is a case in which the putative class representative—respondent here—no longer has the slightest interest in the injuries alleged in his complaint. No member of the class is before the Court; indeed, none has been identified. The case therefore lacks a plaintiff with the minimal personal stake that is a constitutional prerequisite to the jurisdiction of an Art. III court. In any realistic sense, the only persons before this Court who appear to have an interest are the defendants and a lawyer who no longer has a client.21 69 I would vacate the decision of the Court of Appeals and remand with instructions to dismiss the action as moot. 1 The grant of certiorari also included the question of the validity of the Parole Release Guidelines, an issue left open in United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239, 60 L.Ed.2d 805 (1979). We have concluded, however, that it would be premature to reach the merits of that question at this time. See infra, at 408. While the petition for a writ of certiorari was pending, respondent Geraghty filed a motion to substitute as respondents in this Court five prisoners, then incarcerated, who also were represented by Geraghty's attorneys. In the alternative, the prisoners sought to intervene. We deferred our ruling on the motion to the hearing of the case on the merits, 440 U.S. 945, 99 S.Ct. 1420, 59 L.Ed.2d 632 (1979). These prisoners, or most of them, now also have been released from incarceration. On September 25, 1979, a supplement to the motion to substitute or intervene was filed, proposing six new substitute respondents or intervenors; each of these is a presently incarcerated federal prisoner who, allegedly, has been adversely affected by the guidelines and who is represented by Geraghty's counsel. Since we hold that respondent may continue to litigate the class certification issue, there is no need for us to consider whether the motion should be granted in order to prevent the case from being moot. We conclude that the District Court initially should rule on the motion. 2 See, e. g., Armour v. City of Anniston, 597 F.2d 46, 48-49 (CA5 1979); Susman v. Lincoln American Corp., 587 F.2d 866 (CA7 1978), cert. pending, No. 78-1169; Goodman v. Schlesinger, 584 F.2d 1325, 1332-1333 (CA4 1978); Camper v. Calumet Petrochemicals, Inc., 584 F.2d 70 (CA5 1978); Roper v. Consurve, Inc., 578 F.2d 1106 (CA5 1978), aff'd sub nom. Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427; Satterwhite v. City of Greenville, 578 F.2d 987 (CA5 1978) (en banc), cert. pending, No. 78-1008; Vun Cannon v. Breed, 565 F.2d 1096 (CA9 1977); Winokur v. Bell Federal Savings & Loan Assn., 560 F.2d 271 (CA7 1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978); Lasky v. Quinlan, 558 F.2d 1133 (CA2 1977); Kuahulu v. Employers Ins. of Wausau, 557 F.2d 1334 (CA9 1977); Boyd v. Justices of Special Term, 546 F.2d 526 (CA2 1976); Napier v. Gertrude, 542 F.2d 825 (CA10 1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 759, 50 L.Ed.2d 765 (1977). 3 38 Fed.Reg. 31942-31945 (1973). The guidelines currently in force appear at 28 CFR § 2.20 (1979). 4 The extortion count was based on respondent's use of his position as a vice squad officer of the Chicago police force to "shake down" dispensers of alcoholic beverages; the false declarations concerned his involvement in this scheme. 5 Apparently Becher, too, has now been released from prison. 6 The claim in Sosna also fit the traditional category of actions that are deemed not moot despite the litigant's loss of personal stake, that is, those "capable of repetition, yet evading review." See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). In Franks v. Bowman Transportation Co., 424 U.S. 747, 753-755, 96 S.Ct. 1251, 1258-1259, 47 L.Ed.2d 444 (1976), however, the Court held that the class-action aspect of mootness doctrine does not depend on the class claim's being so inherently transitory that it meets the "capable of repetition, yet evading review" standard. 7 Three of the Court's cases might be described as adopting a less flexible approach. In Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), and in Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), dismissal of putative class suits, as moot, was ordered after the named plaintiffs' claims became moot. And in Pasadena City Bd. of Education v. Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 2702, 49 L.Ed.2d 599 (1976), it was indicated that the action would have been moot, upon expiration of the named plaintiffs' claims, had not the United States intervened as a party plaintiff. Each of these, however, was a case in which there was an attempt to appeal the merits without first having obtained proper certification of a class. In each case it was the defendant who petitioned this Court for review. As is observed subsequently in the text, appeal from denial of class classification is permitted in some circumstances where appeal on the merits is not. In the situation where the proposed class representative has lost a "personal stake," the merits cannot be reached until a class properly is certified. Although the Court perhaps could have remanded Jacobs and Weinstein for reconsideration of the class certification issue, as the Court of Appeals did here, the parties in those cases did not suggest "relation back" of class certification. Thus we do not find this line of cases dispositive of the question now before us. 8 Were the class an indispensable party, the named plaintiff's interests in certification would approach a "legally cognizable interest." 9 See, e. g., Landers, Of Legalized Blackmail and Legalized Theft: Consumer Class Actions and the Substance-Procedure Dilemma, 47 S.Cal.L.Rev. 842 (1974); Simon, Class Actions—Useful Tool or Engine of Destruction, 55 F.R.D. 375 (1972). 10 We intimate no view as to whether a named plaintiff who settles the individual claim after denial of class certification may, consistent with Art. III, appeal from the adverse ruling on class certification. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 393-394, and n. 14, 97 S.Ct. 2464, 2469-2470, and n. 14, 53 L.Ed.2d 423 (1977). 11 Mr. Justice POWELL, in his dissent, advocates a rigidly formalistic approach to Art. III, post, at 412, and suggests that our decision today is the Court's first departure from the formalistic view. Post, at 414-419. We agree that the issue at hand is one of first impression and thus, in that narrow sense, is "unprecedented," post, at 419. We do not believe, however, that the decision constitutes a redefinition of Art. III principles or a "significant departur[e]," post, at 409, from "carefully considered" precedents, post, at 418. The erosion of the strict, formalistic perception of Art. III was begun well before today's decision. For example, the protestations of the dissent are strikingly reminiscent of Mr. Justice HARLAN's dissent in Flast v. Cohen, 392 U.S. 83, 116, 88 S.Ct. 1942, 1960, 20 L.Ed.2d 947, in 1968. Mr. Justice HARLAN hailed the taxpayer-standing rule pronounced in that case as a "new doctrine" resting "on premises that do not withstand analysis." Id., at 117, 88 S.Ct., at 1961. He felt that the problems presented by taxpayer standing "involve nothing less than the proper functioning of the federal courts, and so run to the roots of our constitutional system." Id., at 116, 88 S.Ct., at 1961. The taxpayers were thought to complain as "private attorneys-general," and "[t]he interests they represent, and the rights they espouse, are bereft of any personal or proprietary coloration." Id., at 119, 88 S.Ct., at 1962. Such taxpayer actions "are and must be . . . 'public actions' brought to vindicate public rights." Id., at 120, 88 S.Ct., at 1963. Notwithstanding the taxpayers' lack of a formalistic "personal stake," even Mr. Justice HARLAN felt that the case should be held nonjusticiable on purely prudential grounds. His interpretation of the cases led him to conclude that "it is . . . clear that [plaintiffs in a public action] as such are not constitutionally excluded from the federal courts." Ibid. (emphasis in original). It is not somewhat ironic that Mr. Justice POWELL, who now seeks to explain United Airlines, Inc. v. McDonald, supra, as a straightforward application of settled doctrine, post, at 416-417, expressed in his dissent in McDonald, 432 U.S., at 396, 97 S.Ct., at 2471, the view that the holding rested on a fundamental misconception about the mootness of an uncertified class action after settlement of the named plaintiffs' claims? He stated: "Pervading the Court's opinion is the assumption that the class action somehow continued after the District Court denied class status. But that assumption is supported neither by the text nor by the history of Rule 23. To the contrary, . . . the denial of class status converts the litigation to an ordinary nonclass action." Id., at 399, 97 S.Ct., at 2472. The dissent went on to say: "[Petitioner] argues with great force that, as a result of the settlement of their individual claims, the named plaintiffs 'could no longer appeal the denial of class' status that had occurred years earlier. . . . Although this question has not been decided by this Court, the answer on principle is clear. The settlement of an individual claim typically moots any issues associated with it. . . . This case is sharply distinguishable from cases such as Sosna v. Iowa . . . and Franks v. Bowman Transp. Co. . . . where we allowed named plaintiffs whose individual claims were moot to continue to represent their classes. In those cases, the District Courts previously had certified the classes, thus giving them 'a legal status separate from the interest[s] asserted by [the named plaintiffs].' Sosna v. Iowa, supra, 419 U.S. at 399, 95 S.Ct. at 557. This case presents precisely the opposite situation: The prior denial of class status had extinguished any representative capacity." Id., at 400, 97 S.Ct., at 2473 (footnote omitted). Thus, the assumption thought to be "[p]ervading the Court's opinion" in McDonald, and so vigorously attacked by the dissent there, is now relegated to "gratuitous" "dictum," post, at 416. Mr. Justice POWELL, who finds the situation presented in the case at hand "fundamentally different" from that in Sosna and Franks, at 413, also found the facts of McDonald "sharply distinguishable" from those previous cases. 432 U.S., at 400, 97 S.Ct. at 2472. We do not recite these cases for the purpose of showing that our result is mandated by the precedents. We concede that the prior cases may be said to be somewhat confusing, and that some, perhaps, are irreconcilable with others. Our point is that the strict, formalistic view of Art. III jurisprudence, while perhaps the starting point of all inquiry, is riddled with exceptions. And, in creating each exception, the Court has looked to practicalities and prudential considerations. The resulting doctrine can be characterized, aptly, as "flexible"; it has been developed, not irresponsibly, but "with some care," post, at 410, including the present case. The dissent is correct that once exceptions are made to the formalistic interpretation of Art. III, principled distinctions and bright lines become more difficult to draw. We do not attempt to predict how far down the road the Court eventually will go toward premising jurisdiction "upon the bare existence of a sharply presented issue in a concrete and vigorously argued case," post, at 421. Each case must be decided on its own facts. We hasten to note, however, that this case does not even approach the extreme feared by the dissent. This respondent suffered actual, concrete injury as a result of the putatively illegal conduct, and this injury would satisfy the formalistic personal-stake requirement if damages were sought. See, e. g., Powell v. McCormack, 395 U.S., at 495-500, 89 S.Ct., at 1950-1952. His injury continued up to and beyond the time the District Court denied class certification. We merely hold that when a District Court erroneously denies a procedural motion, which, if correctly decided, would have prevented the action from becoming moot, an appeal lies from the denial and the corrected ruling "relates back" to the date of the original denial. The judicial process will not become a vehicle for "concerned bystanders," post, at 413, even if one in respondent's position can conceivably be characterized as a bystander, because the issue on the merits will not be addressed until a class with an interest in the outcome has been certified. The "relation back" principle, a traditional equitable doctrine applied to class certification claims in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), serves logically to distinguish this case from the one brought a day after the prisoner is released. See post, 420-421 n. 15. If the named plaintiff has no personal stake in the outcome at the time class certification is denied, relation back of appellate reversal of that denial still would not prevent mootness of the action. 12 See, e. g., Comment, A Search for Principles of Mootness in the Federal Courts: Part Two—Class Actions, 54 Texas L.Rev. 1289, 1331-1332 (1976); Comment, Continuation and Representation of Class Actions Following Dismissal of the Class Representative, 1974 Duke L.J. 573, 602-608. 1 See, e. g., Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 260-261, 97 S.Ct. 555, 560-561, 50 L.Ed.2d 450 (1977); Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); S. v. D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). Each of these cases rejects the view, once expressed by Mr. Justice Harlan and now apparently espoused by the Court, that the personal stake requirement lacks constitutional significance. Ante, at 404-407, n. 11; Flast v. Cohen, 392 U.S. 83, 120, 88 S.Ct. 1942, 1962, 20 L.Ed.2d 947 (1968) (HARLAN, J., dissenting); see also United States v. Richardson, 418 U.S. 166, 180, 94 S.Ct. 2940, 2948, 41 L.Ed.2d 678 (1974) (POWELL, J., concurring). Until today, however, that view never had commanded a majority. 2 See, e. g., Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974); O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-167, 92 S.Ct. 1965, 1968, 32 L.Ed.2d 627 (1972); Sierra Club v. Morton, 405 U.S. 727, 736-738, 92 S.Ct. 1361, 1367, 31 L.Ed.2d 636 (1972); Tileston v. Ullman, 318 U.S. 44, 46, 63 S.Ct. 493, 494, 87 L.Ed. 603 (1943) (per curiam ). The rule is the same when the question is mootness and a litigant can assert no more than emotional involvement in what remains of the case. Ashcroft v. Mattis, 431 U.S. 171, 172-173, 97 S.Ct. 1739, 1740, 59 L.Ed.2d 219 (1977) (per curiam ). 3 See 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3533, p. 265 (1975); Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 376-377 (1974). 4 See, e. g., Preiser v. Newkirk, 422 U.S. 395, 401-402, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975); SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972); Powell v. McCormack, 395 U.S. 486, 496, n. 7, 89 S.Ct. 1944, 1950, n. 7, 23 L.Ed.2d 491 (1969); Liner v. Jafco, Inc., 375 U.S. 301, 306, n. 3, 84 S.Ct. 391, 394, n. 3, 11 L.Ed.2d 347 (1964). 5 The Court states that "the erosion of the strict, formalistic perception of Art. III was begun well before today's decision," and that the Art. III personal stake requirement is "riddled with exceptions." Ante, at 404-405, 406, n. 11. It fails, however, to cite a single Court opinion in support of either statement. To the extent that the decision in Flast v. Cohen, supra, supports the position ascribed to it in the dissent, 392 U.S., at 117-120, 88 S.Ct., at 1961-1963, it does not survive the long line of express holdings that began with Warth v. Seldin, supra, and were reaffirmed only last Term. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). See nn. 1 and 2, supra. Even before Warth, Professor Davis observed that the personal stake requirement had no exceptions. 35 U.Chi.L.Rev., at 616, 617. 6 No one suggests that respondent could be affected personally by any ruling on the class certification question that is remanded today. In fact, the Court apparently concedes that respondent has no personal stake—"in the traditional sense"—in obtaining certification. Ante, at 402. Several prisoners now in federal custody have filed a motion to intervene as parties respondent in this Court. Although the Court does not rule on that motion, I note that the motion was received well over a year after respondent was released from prison. In the interim, respondent obtained a ruling from the Court of Appeals and filed his petition for certiorari in this Court. Such untimely intervention comes too late to save the action under United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). 7 Respondent's lawyer opened his argument by saying that "[t]he mootness question in this case is, from a practical standpoint, not very significant." If the action is dismissed as moot he plans simply to "file a new case" on behalf of prisoners serving longer terms. Tr. of Oral Arg. 25. On the basis of this representation by counsel, there is reason to believe that members of the putative class at issue ultimately will be included in a class action that will not moot out. 8 Certification is no mere formality. It represents a judicial finding that injured parties other than the named plaintiff exist. It also provides a definition by which they can be identified. Certification identifies and sharpens the interests of unnamed class members in the outcome; only thereafter will they be bound by the outcome. After certification, class members can be certain that the action will not be settled or dismissed without appropriate notice. Fed.Rule Civ.Proc. 23(c); 3 H. Newberg, Class Actions § 5050 (1977); cf. Almond, Settling Rule 23 Class Actions at the Precertification Stage: Is Notice Required?, 56 N.C.L.Rev. 303 (1978). Vigorous advocacy is assured by the authoritative imposition on the named plaintiffs of a duty adequately to represent the entire class. If the named plaintiff's own claim becomes moot after certification, the court can re-examine his ability to represent the interests of class members. Should it be found wanting, the court may seek a substitute representative or even decertify the class. Fed.Rules Civ.Proc. 23(c)(1), 23(d); see 1 Newberg, supra, § 2192; Comment, Continuation and Representation of Class Actions Following Dismissal of the Class Representative, 1974 Duke L.J. 573, 589-590, 602-603. After certification, the case is no different in principle from more traditional representative actions involving, for example, a single party who cannot participate himself because of his incompetence but is permitted to litigate through an appointed fiduciary. 9 The Court's Gerstein analysis, which emphasized that "[p]retrial detention is by nature temporary" and that "[t]he individual could . . . suffer repeated deprivations" with no access to redress, falls squarely within the rule of Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). In similar cases we have noted that the continuation of the action will depend " 'especially [upon] the reality of the claim that otherwise the issue would evade review.' " Swisher v. Brady, 438 U.S. 204, 213, n. 11, 98 S.Ct. 2699, 2706, n. 11, 57 L.Ed.2d 705 (1978), quoting Sosna v. Iowa, 419 U.S. 393, 402, n. 11, 95 S.Ct. 553, 559, n. 11, 42 L.Ed.2d 532 (1975). These limitations are inconsistent with the concept of "flexible" mootness and the redefinition of "personal stake" adopted today. 10 The individual claims of the original named plaintiffs had been settled after judgment on the question of liability. 432 U.S., at 389, 393, n. 14, 97 S.Ct. at 2469, n. 14. 11 This extensive inquiry would have been unnecessary if, as the Court holds today, the intervenor had a personal stake in the class certification issue itself. Since the present respondent's claim long since has "expired," he stands in the same position as a member of the putative class whose claim has "expired" by reason of the statute of limitations. 12 The vitality of the Jacobs result is underscored by the repeated dictum that a properly certified class is necessary to supply adverseness once the named plaintiff's claim becomes moot. East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 406, n. 12, 97 S.Ct. 1891, 1898, n. 12, 52 L.Ed.2d 453 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 754, n. 6, 755-756, 96 S.Ct. 1251, 1259, n. 6, 1260, 47 L.Ed.2d 444 (1976); see Kremens v. Bartley, 431 U.S. 119, 129-130, 97 S.Ct. 1709, 1715-1716, 52 L.Ed.2d 184 (1977); Richardson v. Ramirez, 418 U.S. 24, 39, 94 S.Ct. 2655, 2666, 41 L.Ed.2d 551 (1974). Conversely, we have often stated that the named plaintiff's individual claim must be a live one both at the time the action is filed and at the time of certification. Kremens v. Bartley, supra, 431 U.S. at 143, n. 6, 97 S.Ct. at 1713, n. 6 (BRENNAN, J., dissenting); Sosna v. Iowa, supra, 419 U.S., at 402, 403, 95 S.Ct. at 558-559; see Bell v. Wolfish, 441 U.S. 520, 526, n. 5, 99 S.Ct. 1861, 1867, n. 5, 60 L.Ed.2d 447 (1979); Zablocki v. Redhail, 434 U.S. 374, 382, n. 9, 98 S.Ct. 673, 679, n. 9, 54 L.Ed.2d 618 (1978). 13 In some circumstances, litigants are permitted to argue the rights of third parties in support of their claims. E. g., Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976); Barrows v. Jackson, 346 U.S. 249, 255-256, 73 S.Ct. 1031, 1034-1036, 97 L.Ed. 1586 (1953). In each such case, however, the Court has identified a concrete, individual injury suffered by the litigant himself. Ibid.; see n. 2, supra, and accompanying text. 14 In a footnote, ante, at 406, n. 11, the Court states: "This respondent suffered actual, concrete injury as a result of the putatively illegal conduct, and this injury would satisfy the formalistic personal-stake requirement if damages were sought. See, e. g., Powell v. McCormack, 395 U.S., at 495-500, 89 S.Ct., at 1950-1952." This appears to be a categorical claim of the actual, concrete injury our cases have required. Yet, again, the Court fails to identify the injury. The reference to damages is irrelevant here, as respondent sought no damages—only injunctive and declaratory relief. Moreover, counsel for respondent frankly conceded that his client "can obtain absolutely no additional personal relief" in this case. Tr. of Oral Arg. 25. If the Court seriously is claiming concrete injury "at all stages of review," see supra, at 411, it would be helpful for it to identify specifically this injury that was not apparent to respondent's counsel. Absent such identification, the claim of injury is indeed an empty one. 15 The Court attempts to limit the sweeping consequences that could flow from the application of these criteria, see infra, at 421-422, and n. 18, by asserting that "[e]ach case must be decided on its own facts" on the basis of "practicalities and prudential considerations." Ante, at 406, n. 11. The Court long has recognized a difference between the prudential and constitutional aspects of the standing and mootness doctrines. See supra, at 410. I am not aware that the Court, until today, ever has merged these considerations for the purpose of eliminating the Art. III requirement of a personal stake in the litigation. The Court cites no prior case for this view. Moreover, the Court expounds no limiting principle of any kind. Adverse practical consequences, even if relevant to Art. III analysis, cannot justify today's holding as none whatever would flow from a finding of mootness. See n. 18, infra. Nor does the Court's reliance upon a " 'relation back' principle," ante, at 407, n. 11, further the analysis. Although this fiction may provide a shorthand label for the Court's conclusion, it is hardly a principle and certainly not a limiting one. 16 The Court often has rejected the contention that a "spirited dispute" alone is sufficient to confer jurisdiction. E. g., Richardson v. Ramirez, 418 U.S., at 35-36, 94 S.Ct., at 2661-2662; Hall v. Beals, 396 U.S. 45, 48-49, 90 S.Ct. 200, 201-202, 24 L.Ed.2d 214 (1969) (per curiam ). 17 The Court's assertion to the contrary notwithstanding, there is nothing in the record to suggest that respondent has any interest whatever in his new-found "right to have a class certified." Ante, at 403. In fact, the record shows that respondent's interest in the merits was the sole motivation for his attempt to represent a class. The class claims were added to his complaint only because his lawyer feared that mootness might terminate the action. App. 17; Brief for Respondent 23, 33. The record does not reveal whether respondent—as distinguished from his lawyer—now wishes to continue with the case. If he does, it is clear that his interest has nothing to do with the procedural protections described by the Court as the "primary benefits of class suits." Ante, at 403. It is neither surprising nor improper that respondent should be concerned with parole procedures. But respondent's actual interest is indistinguishable from the generalized interest of a "private attorney general" who might bring a "public action" to improve the operation of a parole system. 18 The Court's view logically cannot be confined to moot cases. If a plaintiff who is released from prison the day after filing a class action challenging parole guidelines may seek certification of the class, why should a plaintiff who is released the day before filing the suit be barred? As an Art. III matter, there can be no difference. Even on prudential grounds, there is little difference between this action and one filed promptly after the named plaintiff's release from prison. In the present case, this Court has ruled on neither the merits nor the propriety of the class action. At the same time, it has vacated a judgment by the Court of Appeals that in turn reversed the judgment of the District Court. No determination on any issue is left standing. For every practical purpose, the action must begin anew—this time without a plaintiff. The prudential considerations in favor of a finding of mootness could scarcely be more compelling. 19 I do not imply that the result reached today is necessary in any way to the continued vitality of the class action device. On the contrary, the practical impact of mootness in this case would be slight indeed. See n. 18, supra. And this may well be typical of class actions brought under Rule 23(b)(1) or (2) to seek injunctive or declaratory relief. Such actions are not subject to frustration through sequential settlement offers that "buy off" each intervening plaintiff. Cf. Deposit Guaranty Nat. Bank v. Roper, 445 U.S., at 339, 100 S.Ct., at 1174. Nor will substitute plaintiffs be deterred by the notice costs that attend certification of a class under Rule 23(b)(3). 20 The Court's efforts to "save" this action from mootness lead it to depart strikingly from the normal role of a reviewing court. The Court fails to identify how, if at all, the District Court has erred. Nothing is said about the District Court's ruling on the merits or its refusal to certify the broad class sought by respondent. Nor does the Court adopt the Court of Appeals' conclusion that the District Court erred in failing to consider the possibility of subclasses sua sponte. Nevertheless, respondent—or his lawyer—is given the opportunity to raise the subclass question on remand. That result cannot be squared with the rule that a litigant may not raise on appeal those issues he has failed to preserve by appropriate objection in the trial court. The Court intimates that the District Court waited too long to deny the class certification motion, thus making a motion for subclasses a "futile act." Ante, at 408. But nothing in the record suggests that the District Court would not have entertained such a motion. Since respondent sought certification in the first place only to avoid mootness on appeal, the entry of an order against him on the merits provides no excuse for his subsequent failure to present a subclass proposal to the District Court. 21 I imply no criticism of counsel in this case. The Court of Appeals agreed with counsel that the certification issue was appealable, and the case was brought to this Court by the United States.

89

445 U.S. 425 100 S.Ct. 1223 63 L.Ed.2d 510 MOBIL OIL CORPORATION, Appellant,v.COMMISSIONER OF TAXES OF VERMONT. No. 78-1201. Argued Nov. 7, 1979. Decided March 19, 1980. Syllabus Appellant is a corporation organized under the laws of New York, where it has its principal place of business and its "commercial domicile." It does business in many States, including Vermont, where it engages in the wholesale and retail marketing of petroleum products. Vermont imposed a corporate income tax, calculated by means of an apportionment formula, upon "foreign source" dividend income received by appellant from its subsidiaries and affiliates doing business abroad. Appellant challenged the tax on the grounds, inter alia, that it violated the Due Process Clause of the Fourteenth Amendment and the Commerce Clause, but the tax ultimately was upheld by the Vermont Supreme Court. Held : 1. The tax does not violate the Due Process Clause. There is a sufficient "nexus" between Vermont and appellant to justify the tax, and neither the "foreign source" of the income in question nor the fact that it was received in the form of dividends from subsidiaries and affiliates precludes its taxability. Appellant failed to establish that its subsidiaries and affiliates engage in business activities unrelated to its sale of petroleum products in Vermont, and accordingly it has failed to sustain its burden of proving that its "foreign source" dividends are exempt, as a matter of due process, from fairly apportioned income taxation by Vermont. Pp. 436-442. 2. Nor does the tax violate the Commerce Clause. Pp. 442-449. (a) The tax does not impose a burden on interstate commerce by virtue of its effect relative to appellant's income tax liability in other States. Assuming that New York, the State of "commercial domicile," has the authority to impose some tax on appellant's dividend income, there is no reason why that power should be exclusive when the dividends reflect income from a unitary business, part of which is conducted in other States. The income bears relation to benefits and privileges conferred by several States, and in these circumstances apportionment, rather than allocation, is ordinarily the accepted method of taxation. Vermont's interest in taxing a proportionate share of appellant's dividend income thus is not overridden by any interest of the State of "commercial domicile." Pp. 443-446. (b) Nor does the tax impose a burden on foreign commerce. Appellant's argument that the risk of multiple taxation abroad requires allocation of "foreign source" income to a single situs at home, is without merit in the present context. That argument attempts to focus attention on the effect of foreign taxation when the effect of domestic taxation is the only real issue; its logic is not limited to dividend income but would apply to any income arguably earned from foreign commerce, so that acceptance of the argument would make it difficult for state taxing authorities to determine whether income does or does not have a foreign source; the argument underestimates this Court's power to correct discriminatory taxation of foreign commerce that results from multiple state taxation; and its acceptance would not guarantee a lesser domestic tax burden on dividend income from foreign sources. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed.2d 336, which concerned property taxation of instrumentalities of foreign commerce, does not provide an analogy for this case. Pp. 446-449. 136 Vt. 545, 394 A.2d 1147, affirmed. Jerome R. Hellerstein, New York City, for appellant. Richard Johnson King, Waitsfield, Vt., for appellee. William D. Dexter, Olympia, Wash., for the Multistate Tax Commission et al., as amici curiae, by special leave of Court. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 In this case we are called upon to consider constitutional limits on a nondomiciliary State's taxation of income received by a domestic corporation in the form of dividends from subsidiaries and affiliates doing business abroad. The State of Vermont imposed a tax, calculated by means of an apportionment formula, upon appellant's so-called "foreign source" dividend income for the taxable years 1970, 1971, and 1972. The Supreme Court of Vermont sustained that tax. 2 * A. 3 Appellant Mobil Oil Corporation is a corporation organized under the laws of the State of New York. It has its principal place of business and its "commercial domicile" in New York City. It is authorized to do business in Vermont. 4 Mobil engages in an integrated petroleum business, ranging from exploration for petroleum reserves to production, refining, transportation, and distribution and sale of petroleum and petroleum products. It also engages in related chemical and mining enterprises. It does business in over 40 of our States and in the District of Columbia as well as in a number of foreign countries. 5 Much of appellant's business abroad is conducted through wholly and partly owned subsidiaries and affiliates. Many of these are corporations organized under the laws of foreign nations; a number, however, are domestically incorporated in States other than Vermont.1 None of appellant's subsidiaries or affiliates conducts business in Vermont, and appellant's shareholdings in those corporations are controlled and managed elsewhere, presumably from the headquarters in New York City. 6 In Vermont, appellant's business activities are confined to wholesale and retail marketing of petroleum and related products. Mobil has no oil or gas production or refineries within the State. Although appellant's business activity in Vermont is by no means insignificant, it forms but a small part of the corporation's worldwide enterprise. According to the Vermont corporate income tax returns Mobil filed for the three taxable years in issue appellant's Vermont sales were $8,554,200, $9,175,931, and $9,589,447 respectively; its payroll in the State was $236,553, $244,577, and $254,938, respectively; and the value of its property in Vermont was $3,930,100, $6,707,534, and $8,236,792, respectively. App. 35-36, 49-50, 63-64. Substantial as these figures are, they too, represent only tiny portions of the corporation's total sales, payroll, and property.2 7 Vermont imposes an annual net income tax on every corporation doing business within the State. Under its scheme, net income is defined as the taxable income of the taxpayer "under the laws of the United States." Vt.Stat.Ann., Tit. 32, § 5811(18) (1970 and Supp.1978).3 If a taxpayer corporation does business both within and without Vermont, the State taxes only that portion of the net income attributable to it under a three-factor apportionment formula. In order to determine that portion, net income is multiplied by a fraction representing the arithmetic average of the ratios of sales, payroll, and property values within Vermont to those of the corporation as a whole. § 5833(a).4 8 Appellant's net income for 1970, 1971, and 1972, as defined by the Federal Internal Revenue Code, included substantial amounts received as dividends from its subsidiaries and affiliates operating abroad. Mobil's federal income tax returns for the three years showed taxable income of approximately $220 million, $308 million, and $233 million, respectively, of which approximately $174 million, $283 million, and $280 million was net dividend income.5 On its Vermont returns for these years, however, appellant subtracted from federal taxable income items it regarded as "nonapportionable," including the net dividends. As a result of these subtractions, Mobil's Vermont returns showed a net income of approximately $23 million for 1970 and losses for the two succeeding years. After application of Vermont's apportionment formula, an aggregate tax liability of $1,871.90 to Vermont remained for the 3-year period; except for a minimum tax of $25 for each of 1971 and 1972, all of this was attributable to 1970.6 9 The Vermont Department of Taxes recalculated appellant's income by restoring the asserted nonapportionable items to the preapportionment tax base. It determined that Mobil's aggregate tax liability for the three years was $76,418.77, and deficiencies plus interest were assessed accordingly.7 Appellant challenged the deficiency assessments before the Commissioner of Taxes. It argued, among other things, that taxation of the dividend receipts under Vermont's corporate income tax violated the Due Process Clause of the Fourteenth Amendment, as well as the Interstate and Foreign Commerce Clause, U.S.Const., Art. I, § 8, cl. 3. Appellant also argued that inclusion of the dividend income in its tax base was inconsistent with the terms of the Vermont tax statute, because it would not result in a "fair" and "equitable" apportionment, and it petitioned for modification of the apportionment. See Vt.Stat.Ann., Tit. 32, § 5833(b) (1970 and Supp.1978).8 It is evident from the transcript of the hearing before the Commissioner that appellant's principal object was to achieve the subtraction of the asserted nonapportionable income from the preapportionment tax base; the alternative request for modification of the apportionment formula went largely undeveloped. See App. 18-31. 10 The Commissioner held that inclusion of dividend income in the tax base was required by the Vermont statute, and he rejected appellant's Due Process Clause and Commerce Clause arguments.9 11 Mobil sought review by the Superior Court of Washington County. That court reversed the Commissioner's ruling. It held that inclusion of dividend income in the tax base unconstitutionally subjected appellant to prohibitive multiple taxation because New York, the State of appellant's commercial domicile, had the authority to tax the dividends in their entirety. Since New York could tax without apportionment, the court concluded, Vermont's use of an apportionment formula would not be an adequate safeguard against multiple taxation. It agreed with appellant that subtraction of dividend income from the Vermont tax base was the only acceptable approach. App. to Juris. Statement 14a. 12 The Commissioner, in his turn, appealed to the Supreme Court of Vermont. That court reversed the judgment of the Superior Court. 136 Vt. 545, 394 A.2d 1147 (1978). The court noted that appellant's quarrel was with the calculation of the tax base and not with the method or accuracy of the statutory apportionment formula. Id., at 547, 394 A.2d, at 1148. It found a sufficient "nexus" between the corporation and the State to justify an apportioned tax on both appellant's investment income and its operating income.10 The court rejected the "multiple taxation" theory that had prevailed in the Superior Court. In its view, appellant had failed to prove that multiple taxation would actually ensue. New York did not tax the dividend income during the taxable years in question, and "[i]n a conflict between Vermont's apportioned tax on Mobil's investment income and an attempt on New York's part to tax that same income without apportionment, New York might very well have to yield." Id., at 552, 394 A.2d, at 1151. Accordingly, the court held that no constitutional defect had been established. It remanded the case for reinstatement of the deficiency assessments. 13 The substantial federal question involved prompted us to note probable jurisdiction. 441 U.S. 941, 99 S.Ct. 2157, 60 L.Ed.2d 1043 (1979). B 14 In keeping with its litigation strategy, appellant has disclaimed any dispute with the accuracy or fairness of Vermont's apportionment formula. See Juris. Statement 10; Brief for Appellant 11. Instead, it claims that dividends from a "foreign source" by their very nature are not apportionable income.11 This election to attack the tax base rather than the formula substantially narrows the issues before us. In deciding this appeal, we do not consider whether application of Vermont's formula produced a fair attribution of appellant's dividend income to that State. Our inquiry is confined to the question whether there is something about the character of income earned from investments in affiliates and subsidiaries operating abroad that precludes, as a constitutional matter, state taxation of that income by the apportionment method. 15 In addressing this question, moreover, it is necessary to bear in mind that Mobil's "foreign source" dividend income is of two distinct types. The first consists of dividends from domestic corporations, organized under the laws of States other than Vermont, that conduct all their operations, and hence earn their income, outside the United States.12 The second type consists of dividends from corporations both organized and operating abroad. The record in this case fails to supply much detail concerning the activities of the corporations whose dividends allegedly fall into these two categories, but it is apparent, from perusal of such documents in the record as appellant's corporate reports for the years in question, that many of these subsidiaries and affiliates, including the principal contributors to appellant's dividend income, engage in business activities that form part of Mobil's integrated petroleum enterprise. Indeed, although appellant is unwilling to concede the legal conclusion that these activities form part of a "unitary business," see Reply Brief for Appellant 2, n. 1, it has offered no evidence that would undermine the conclusion that most, if not all, of its subsidiaries and affiliates contribute to appellant's worldwide petroleum enterprise. 16 To justify exclusion of the dividends from income subject to apportionment in Vermont, Mobil offers three principal arguments. First, it argues that the dividends may not be taxed in Vermont because there is no "nexus" between that State and either appellant's management of its investments or the business activities of the payor corporations. Second, it argues that taxation of the dividends in Vermont would create an unconstitutional burden of multiple taxation because the dividends would be taxable in full in New York, the State of commercial domicile. In this context, appellant relies on the traditional rule that dividends are taxable at their "business situs," a rule which it suggests is of constitutional dimension. Third, Mobil argues that the "foreign source" of the dividends precludes state income taxation in this country, at least in States other than the commercial domicile, because of the risk of multiple taxation at the international level. In a related argument, appellant contends that local taxation of the sort undertaken in Vermont prevents the Nation from speaking with a single voice in foreign commercial affairs. We consider each of these arguments in turn. II 17 It long has been established that the income of a business operating in interstate commerce is not immune from fairly apportioned state taxation. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458-462, 79 S.Ct. 357, 362-364, 3 L.Ed.2d 421 (1959); Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 120, 41 S.Ct. 45, 46, 65 L.Ed. 165 (1920); United States Glue Co. v. Oak Creek, 247 U.S. 321, 328-329, 38 S.Ct. 499, 501, 62 L.Ed. 1135 (1918). "[T]he entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of interstate affairs." Northwestern States Portland Cement Co. v. Minnesota, 358 U.S., at 460, 79 S.Ct., at 363. For a State to tax income generated in interstate commerce, the Due Process Clause of the Fourteenth Amendment imposes two requirements: a "minimal connection" between the interstate activities and the taxing State, and a rational relationship between the income attributed to the State and the intrastate values of the enterprise. Moorman Mfg. Co. v. Bair, 437 U.S. 267, 272-273, 98 S.Ct. 2340, 2344, 57 L.Ed.2d 197 (1978); see National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 756, 87 S.Ct. 1389, 1391, 18 L.Ed.2d 505 (1967); Norfolk & Western R. Co. v. Missouri Tax Comm'n, 390 U.S. 317, 325, 88 S.Ct. 995, 1000, 19 L.Ed.2d 1201 (1968). The requisite "nexus" is supplied if the corporation avails itself of the "substantial privilege of carrying on business" within the State; and "[t]he fact that a tax is contingent upon events brought to pass without a state does not destroy the nexus between such a tax and transactions within a state for which the tax is an exaction." Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444-445, 61 S.Ct. 246, 250, 85 L.Ed. 1143 (1940). 18 We do not understand appellant to contest these general principles. Indeed, in its Vermont tax returns for the years in question, Mobil included all its operating income in apportionable net income, without regard to the locality in which it was earned. Nor has appellant undertaken to prove that the amount of its tax liability as determined by Vermont is "out of all appropriate proportion to the business transacted by the appellant in that State." Hans Rees' Sons v. North Carolina ex rel. Maxwell, 283 U.S. 123, 135, 51 S.Ct. 385, 389, 75 L.Ed. 879 (1931).13 What appellant does seek to establish, in the due process phase of its argument, is that its dividend income must be excepted from the general principle of apportionability because it lacks a satisfactory nexus with appellant's business activities in Vermont. To carve that out as an exception, appellant must demonstrate something about the nature of this income that distinguishes it from operating income, a proper portion of which the State concededly may tax. From appellant's argument we discern two potential differentiating factors: the "foreign source" of the income, and the fact that it is received in the form of dividends from subsidiaries and affiliates. 19 The argument that the source of the income precludes its taxability runs contrary to precedent. In the past, apportionability often has been challenged by the contention that income earned in one State may not be taxed in another if the source of the income may be ascertained by separate geographical accounting. The Court has rejected that contention so long as the intrastate and extrastate activities formed part of a single unitary business. See Butler Bros. v. McColgan, 315 U.S. 501, 506-508, 62 S.Ct. 701, 703-704, 86 L.Ed. 991 (1942); Ford Motor Co. v. Beauchamp, 308 U.S. 331, 336, 60 S.Ct. 273, 276, 84 L.Ed. 304 (1939); cf. Moorman Mfg. Co. v. Bair, 437 U.S., at 272, 98 S.Ct., at 2344. In these circumstances, the Court has noted that separate accounting, while it purports to isolate portions of income received in various States, may fail to account for contributions to income resulting from functional integration, centralization of management, and economies of scale. Butler Bros. v. McColgan, 315 U.S., at 508-509, 62 S.Ct., at 704-705. Because these factors of profitability arise from the operation of the business as a whole, it becomes misleading to characterize the income of the business as having a single identifiable "source." Although separate geographical accounting may be useful for internal auditing, for purposes of state taxation it is not constitutionally required. 20 The Court has applied the same rationale to businesses operating both here and abroad. Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282 (1924), is the leading example. A British corporation manufactured ale in Great Britain and sold some of it in New York. The corporation objected on due process grounds to New York's imposition of an apportioned franchise tax on the corporation's net income. The Court sustained the tax on the strength of its earlier decision in Underwood Typewriter Co. v. Chamberlain, supra, where it had upheld a similar tax as applied to a business operating in several of our States. It ruled that the brewer carried on a unitary business, involving "a series of transactions beginning with the manufacture in England and ending in sales in New York and other places," and that "the State was justified in attributing to New York a just proportion of the profits earned by the Company from such unitary business." 266 U.S., at 282, 45 S.Ct., at 84. 21 As these cases indicate, the linchpin of apportionability in the field of state income taxation is the unitary-business principle.14 In accord with this principle, what appellant must show, in order to establish that its dividend income is not subject to an apportioned tax in Vermont, is that the income was earned in the course of activities unrelated to the sale of petroleum products in that State. Bass, Ratcliff & Gretton forecloses the contention that the foreign source of the dividend income alone suffices for this purpose. Moreover, appellant has made no effort to demonstrate that the foreign operations of its subsidiaries and affiliates are distinct in any business or economic sense from its petroleum sales activities in Vermont. Indeed, all indications in the record are to the contrary, since it appears that these foreign activities are part of appellant's integrated petroleum enterprise. In the absence of any proof of discrete business enterprise, Vermont was entitled to conclude that the dividend income's foreign source did not destroy the requisite nexus with in-state activities. 22 It remains to be considered whether the form in which the income was received serves to drive a wedge between Mobil's foreign enterprise and its activities in Vermont. In support of the contention that dividend income ought to be excluded from apportionment, Mobil has attempted to characterize its ownership and management of subsidiaries and affiliates as a business distinct from its sale of petroleum products in this country. Various amici also have suggested that the division between parent and subsidiary should be treated as a break in the scope of unitary business, and that the receipt of dividends is a discrete "taxable event" bearing no relation to Vermont. 23 At the outset, we reject the suggestion that anything is to be gained by characterizing receipt of the dividends as a separate "taxable event." In Wisconsin v. J. C. Penney Co., supra, the Court observed that "tags" of this kind "are not instruments of adjudication but statements of result," and that they add little to analysis. 311 U.S., at 444, 61 S.Ct., at 250. Mobil's business entails numerous "taxable events" that occur outside Vermont. That fact alone does not prevent the State from including income earned from those events in the preapportionment tax base. 24 Nor do we find particularly persuasive Mobil's attempt to identify a separate business in its holding company function. So long as dividends from subsidiaries and affiliates reflect profits derived from a functionally integrated enterprise, those dividends are income to the parent earned in a unitary business. One must look principally at the underlying activity, not at the form of investment, to determine the propriety of apportionability. 25 Superficially, intercorporate division might appear to be a more attractive basis for limiting apportionability. But the form of business organization may have nothing to do with the underlying unity or diversity of business enterprise. Had appellant chosen to operate its foreign subsidiaries as separate divisions of a legally as well as a functionally integrated enterprise, there is little doubt that the income derived from those divisions would meet due process requirements for apportionability. Cf. General Motors Corp. v. Washington, 377 U.S. 436, 441, 84 S.Ct. 1564, 1568, 12 L.Ed.2d 430 (1964). Transforming the same income into dividends from legally separate entities works no change in the underlying economic realities of a unitary business, and accordingly it ought not to affect the apportionability of income the parent receives.15 26 We do not mean to suggest that all dividend income received by corporations operating in interstate commerce is necessarily taxable in each State where that corporation does business. Where the business activities of the dividend payor have nothing to do with the activities of the recipient in the taxing State, due process considerations might well preclude apportionability, because there would be no underlying unitary business. We need not decide, however, whether Vermont's tax statute would reach extraterritorial values in an instance of that kind. Cf. Underwood Typewriter Co. v. Chamberlain, 254 U.S., at 121, 41 S.Ct., at 47. Mobil has failed to sustain its burden of proving any unrelated business activity on the part of its subsidiaries and affiliates that would raise the question of nonapportionability. See Norton Co. v. Department of Revenue, 340 U.S. 534, 537, 71 S.Ct. 377, 380, 95 L.Ed. 517 (1951); Butler Bros. v. McColgan, 315 U.S., at 507, 62 S.Ct., at 704.16 We therefore hold that its foreign-source dividends have not been shown to be exempt, as a matter of due process, from apportionment for state income taxation by the State of Vermont. III 27 In addition to its due process challenge, appellant contends that Vermont's tax imposes a burden on interstate and foreign commerce by subjecting appellant's dividend income to a substantial risk of multiple taxation. We approach this argument in two steps. First, we consider whether there was a burden on interstate commerce by virtue of the effect of the Vermont tax relative to appellant's income tax liability in other States. Next, we determine whether constitutional protections for foreign commerce pose additional considerations that alter the result. A. 28 The effect of the Commerce Clause on state taxation of interstate commerce is a frequently litigated subject that appears to be undergoing a revival of sorts.17 In several recent cases, this Court has addressed the issue and has attempted to clarify the apparently conflicting precedents it has spawned. See, e. g., Moorman Mfg. Co. v. Bair, 437 U.S., at 276-281, 98 S.Ct., at 2346-2348; Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U.S. 734, 743-751, 98 S.Ct. 1388, 1395-1400, 55 L.Ed.2d 682 (1978); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). In an endeavor to establish a consistent and rational method of inquiry, we have examined the practical effect of a challenged tax to determine whether it "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." Id., at 279, 97 S.Ct., at 1079. 29 Appellant asserts that Vermont's tax is discriminatory because it subjects interstate business to a burden of duplicative taxation that an intrastate taxpayer would not bear. Mobil does not base this claim on a comparison of Vermont's apportionment formula with those used in other States where appellant pays income taxes. Cf. Moorman Mfg. Co. v. Bair, supra; Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 255-256, 58 S.Ct. 546, 548-549, 82 L.Ed. 823 (1938). Rather, it contends that any apportioned tax on its dividends will place an undue burden on that specific source of income, because New York, the State of commercial domicile, has the power to tax dividend income without apportionment. For the latter proposition, appellant cites property tax cases that hold that intangible property is to be taxed either by the State of commercial domicile or by the State where the property has a "business situs." See, e. g., First Bank Stock Corp. v. Minnesota, 301 U.S. 234, 237, 57 S.Ct. 677, 678, 81 L.Ed. 1061 (1937); Wheeling Steel Corp. v. Fox, 298 U.S. 193, 208-210, 56 S.Ct. 773, 776-777, 80 L.Ed. 1143 (1936); Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U.S. 385, 396, 23 S.Ct. 463, 467, 43 L.Ed. 513 (1903); cf. New York ex rel. Whitney v. Graves, 299 U.S. 366, 372-373, 57 S.Ct. 237, 238-239, 81 L.Ed. 285 (1937). 30 Inasmuch as New York does not presently tax the dividends in question, actual multiple taxation is not demonstrated on this record. The Vermont courts placed some reliance on this fact, see, e. g., 136 Vt., at 548, 394 A.2d, at 1149, and much of the debate in this Court has aired the question whether an actual burden need be shown. Compare Standard Pressed Steel Co. v. Department of Revenue, 419 U.S. 560, 563-564, 95 S.Ct. 706, 709, 42 L.Ed.2d 719 (1975), and Freeman v. Hewit, 329 U.S. 249, 256, 67 S.Ct. 274, 278, 91 L.Ed. 265 (1946), with Northwestern States Portland Cement Co. v. Minnesota, 358 U.S., at 462-463, 79 S.Ct., at 364, and Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283 (1944). See also Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 452, n. 17, 99 S.Ct. 1813, 1823, n. 17, 60 L.Ed.2d 336 (1979). We agree with Mobil that the constitutionality of a Vermont tax should not depend on the vagaries of New York tax policy. But the absence of any existing duplicative tax does alter the nature of appellant's claim. Instead of seeking relief from a present tax burden, appellant seeks to establish a theoretical constitutional preference for one method of taxation over another. In appellant's view, the Commerce Clause requires allocation of dividend income to a single situs rather than apportionment among the States. 31 Taxation by apportionment and taxation by allocation to a single situs are theoretically incommensurate, and if the latter method is constitutionally preferred, a tax based on the former cannot be sustained. See Standard Oil Co. v. Peck, 342 U.S. 382, 384, 72 S.Ct. 309, 310, 96 L.Ed. 427 (1952). We find no adequate justification, however, for such a preference. Although a fictionalized situs for intangible property sometimes has been invoked to avoid multiple taxation of ownership, there is nothing talismanic about the concepts of "business situs" or "commercial domicile" that automatically renders those concepts applicable when taxation of income from intangibles is at issue. The Court has observed that the maxim mobilia sequuntur personam, upon which these fictions of situs are based, "states a rule without disclosing the reasons for it." First Bank Stock Corp. v. Minnesota, 301 U.S., at 241, 57 S.Ct., at 680. The Court also has recognized that "the reason for a single place of taxation no longer obtains" when the taxpayer's activities with respect to the intangible property involve relations with more than one jurisdiction. Curry v. McCanless, 307 U.S. 357, 367, 59 S.Ct. 900, 906, 83 L.Ed. 1339 (1939). Even for property or franchise taxes, apportionment of intangible values is not unknown. See Ford Motor Co. v. Beauchamp, 308 U.S., at 335-336, 60 S.Ct., at 275-276; Adams Express Co. v. Ohio State Auditor, 166 U.S. 185, 222, 17 S.Ct. 604, 606, 41 L.Ed. 965 (1897). Moreover, cases upholding allocation to a single situs for property tax purposes have distinguished income tax situations where the apportionment principle prevails. See Wheeling Steel Corp. v. Fox, 298 U.S., at 212, 56 S.Ct., at 778. 32 The reasons for allocation to a single situs that often apply in the case of property taxation carry little force in the present context. Mobil no doubt enjoys privileges and protections conferred by New York law with respect to ownership of its stock holdings, and its activities in that State no doubt supply some nexus for jurisdiction to tax. Cf. First Bank Stock Corp. v. Minnesota, 301 U.S., at 240-241, 57 S.Ct., at 679-680. Although we do not now presume to pass on the constitutionality of a hypothetical New York tax, we may assume, for present purposes, that the State of commercial domicile has the authority to lay some tax on appellant's dividend income as well as on the value of its stock. But there is no reason in theory why that power should be exclusive when the dividends reflect income from a unitary business, part of which is conducted in other States. In that situation, the income bears relation to benefits and privileges conferred by several States. These are the circumstances in which apportionment is ordinarily the accepted method. Since Vermont seeks to tax income, not ownership, we hold that its interest in taxing a proportionate share of appellant's dividend income is not overridden by any interest of the State of commercial domicile. B 33 What has been said thus far does not fully dispose of appellant's additional contention that the Vermont tax imposes a burden on foreign commerce. Relying upon the Court's decision last Term in Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979), Mobil suggests that dividends from foreign sources must be allocated to the State of commercial domicile, even if dividends from subsidiaries and affiliates operating domestically are not. By accepting the power of the State of commercial domicile to tax foreign-source dividend income, appellant eschews the broad proposition that foreign-source dividends are immune from state taxation. It presses the narrower contention that, because of the risk of multiple taxation abroad, allocation of foreign-source income to a single situs is required at home. Appellant's reasoning tracks the rationale of Japan Line, that is, that allocation is required because apportionment necessarily entails some inaccuracy and duplication. This inaccuracy may be tolerable for businesses operating solely within the United States, it is said, because this Court has power to correct any gross overreaching. The same inaccuracy, however, becomes intolerable when it is added to the risk of duplicative taxation abroad, which this Court is powerless to control. Accordingly, the only means of alleviating the burden of overlapping taxes is to adopt an allocation rule. 34 This argument is unpersuasive in the present context for several reasons. First, it attempts to focus attention on the effect of foreign taxation when the effect of domestic taxation is the only real issue. By admitting the power of the State of commercial domicile to tax foreign-source dividends in full, Mobil necessarily forgoes any contention that local duplication of foreign taxes is proscribed. Thus, the only inquiry of constitutional dimension is the familiar question whether taxation by apportionment at home produces significantly greater tax burdens than taxation by allocation. Once appellant's argument is placed in this perspective, the presence or absence of taxation abroad diminishes in importance. 35 Second, nothing about the logic of Mobil's position is limited to dividend income. The same contention could be advanced about any income arguably earned from foreign commerce. If appellant's argument were accepted, state taxing commissions would face substantial difficulties in attempting to determine what income does or does not have a foreign source. 36 Third, appellant's argument underestimates the power of this Court to correct excessive taxation on the field where appellant has chosen to pitch its battle. A discriminatory effect on foreign commerce as a result of multiple state taxation is just as detectable and corrigible as a similar effect on commerce among the States. Accordingly, we see no reason why the standard for identifying impermissible discrimination should differ in the two instances. 37 Finally, acceptance of appellant's argument would provide no guarantee that allocation will result in a lesser domestic tax burden on dividend income from foreign sources. By appellant's own admission, allocation would give the State of commercial domicile the power to tax that income in full, without regard to the extent of taxation abroad. Unless we indulge in the speculation that a State will volunteer to become a tax haven for multinational enterprises, there is no reason to suspect that a State of commercial domicile will be any less vigorous in taxing the whole of the dividend income than a State like Vermont will be in taxing a proportionate share. 38 Appellant's attempted analogy between this case and Japan Line strikes us as forced. That case involved ad valorem property taxes assessed directly upon instrumentalities of foreign commerce. As has been noted, the factors favoring use of the allocation method in property taxation have no immediate applicability to an income tax. Japan Line, moreover, focused on problems of duplicative taxation at the international level, while appellant here has confined its argument to the wholly different sphere of multiple taxation among our States. Finally, in Japan Line the Court was confronted with actual multiple taxation that could be remedied only by adoption of an allocation approach. As has already been explained, in the present case we are not similarly impelled. 39 Nor does federal tax policy lend additional weight to appellant's arguments. The federal statutes and treaties that Mobil cites, Brief for Appellant 38-43, concern problems of multiple taxation at the international level and simply are not germane to the issue of multiple state taxation that appellant has framed. Concurrent federal and state taxation of income, of course, is a well-established norm. Absent some explicit directive from Congress, we cannot infer that treatment of foreign income at the federal level mandates identical treatment by the States. The absence of any explicit directive to that effect is attested by the fact that Congress has long debated, but has not enacted, legislation designed to regulate state taxation of income. See H.R.Rep.No. 1480, 88th Cong., 2d Sess. (1964); H.R.Rep.No. 565, 89th Cong., 1st Sess. (1965); H.R.Rep.No. 952, 89th Cong., 1st Sess. (1965); Hearings on State Taxation of Interstate Commerce before the Subcommittee on State Taxation of Interstate Commerce of the Senate Committee on Finance, 93d Cong., 1st Sess. (1973); cf. United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 456, n.4, 98 S.Ct. 799, 804, n.4, 54 L.Ed.2d 682 (1978). Legislative proposals have provoked debate over issues closely related to the present controversy. See, e. g., New York State Bar Assn. Tax Section Committee on Interstate Taxation, Proposals for Improvement of Interstate Taxation Bills (H.R. 1538 and S. 317), 25 Tax Lawyer 433 (1971). Congress in the future may see fit to enact legislation requiring a uniform method for state taxation of foreign dividends. To date, however, it has not done so. IV 40 In sum, appellant has failed to demonstrate any sound basis, under either the Due Process Clause or the Commerce Clause, for establishing a constitutional preference for allocation of its foreign-source dividend income to the State of commercial domicile. Because the issue has not been presented, we need not, and do not, decide what the constituent elements of a fair apportionment formula applicable to such income would be. We do hold, however, that Vermont is not precluded from taxing its proportionate share. 41 The judgment of the Supreme Court of Vermont is affirmed. 42 It is so ordered. 43 Mr. Justice STEWART and Mr. Justice MARSHALL took no part in the consideration or decision of this case. 44 Mr. Justice STEVENS, dissenting. 45 The Court today decides one substantive question and two procedural questions. Because of the way in which it resolves the procedural issues, the Court's substantive holding is extremely narrow. It is carefully "confined to the question whether there is something about the character of income earned from investments in affiliates and subsidiaries operating abroad that precludes, as a constitutional matter, state taxation of that income by the apportionment method." Ante, at 434-435.1 Since that question has long since been answered in the negative, see, e. g., Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282, the Court's principal holding is unexceptional. 46 The Court's substantive holding rests on the assumed premises (1) that Mobil's investment income and its income from operations in Vermont are inseparable parts of one unitary business and (2) that the entire income of that unitary business has been accurately and fairly apportioned between Vermont and the rest of the world—assuming the constitutional validity of including any foreign income in the allocation formula. The Court holds—as I understand its opinion—that Mobil "offered no evidence" challenging the first premise,2 and that it expressly disclaimed any attack on the second.3 47 I disagree with both of these procedural holdings. I am persuaded that the record before us demonstrates either (1) that Mobil's income from its investments and its income from the sale of petroleum products in Vermont are not parts of the same "unitary business," as that concept has developed in this Court's cases; or (2) that if the unitary business is defined to include both kinds of income, Vermont's apportionment formula has been applied in an arbitrary and unconstitutional way. To explain my position, it is necessary first to recall the limited purpose that the unitary-business concept serves in this kind of case, then to identify the two quite different formulations of Mobil's "unitary business" that could arguably support Vermont's application of its apportionment formula to Mobil's investment income, and finally to show why on this record Mobil is entitled to relief using either formulation. Because I also believe that Mobile has done nothing to waive its entitlement, I conclude that the Court's substantive holding is inadequate to dispose of Mobil's contentions. 48 * It is fundamental that a State has no power to impose a tax on income earned outside of the State.4 The out-of-state income of a business that operates in more than one State is subject to examination by the taxing State only because of "the impossibility of allocating specifically the profits earned by the processes conducted within its borders." Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 121, 41 S.Ct. 45, 47, 65 L.Ed. 165. An apportionment formula is an imperfect, but nevertheless acceptable, method of measuring the in-state earnings of an integrated business. "It owes its existence to the fact that with respect to a business earning income through a series of transactions beginning with manufacturing in one State and ending with a sale in another, a precise—or even wholly logical determination of the State in which any specific portion of the income was earned is impossible." Moorman Mfg. Co. v. Bair, 437 U.S. 267, 286, 98 S.Ct. 2340, 2351, 57 L.Ed.2d 197 (POWELL, J., dissenting). 49 In the absence of any decision by Congress to prescribe uniform rules for allocating the income of interstate businesses to the appropriate geographical source, the Court has construed the Constitution as allowing the States wide latitude in the selection and application of apportionment formulas. See, e. g., Moorman Mfg. Co., id., at 278-280, 98 S.Ct., at 2347-2348. Thus an acceptable formula may allocate income on the basis of the location of tangible assets, Underwood Typewriter, supra, on the basis of gross sales. Moorman, supra, or—as is more typical today—by an averaging of three factors: payroll, sales and tangible properties. See, e. g., Butler Bros. v. McColgan, 315 U.S. 501, 505, 62 S.Ct. 701, 703, 86 L.Ed. 991. In that case the Court explained: 50 "We cannot say that property, pay roll, and sales are inappropriate ingredients of an apportionment formula. We agree with the Supreme Court of California that these factors may properly be deemed to reflect 'the relative contribution of the activities in the various states to the production of the total unitary income,' so as to allocate to California its just proportion of the profits earned by appellant from this unitary business. And no showing has been made that income unconnected with the unitary business has been used in the formula." Id., at 509, 62 S.Ct., at 705. 51 The justification for using an apportionment formula to measure the in-state earnings of a unitary business is inapplicable to out-of-state earnings from a source that is unconnected to the business conducted within the State. This rather obvious proposition is recognized by the commentators5 and is noted in our opinions.6 If a taxpayer proves by clear and cogent evidence that the income attributed to the State by an apportionment formula is " 'out of all appropriate proportion to the business transacted . . . in that State,' " see Moorman, supra, at 274, 98 S.Ct., at 2345, the assessment cannot stand. 52 As Mr. Justice Holmes wrote, with respect to an Indiana property tax on the unitary business conducted by an express company: 53 "It is obvious, however, that this notion of organic unity may be made a means of unlawfully taxing the privilege [of carrying on commerce among the States], or property outside the State, under the name of enhanced value or good will, if it is not closely confined to its true meaning. So long as it fairly may be assumed that the different parts of a line are about equal in value a division by mileage is justifiable. But it is recognized in the cases that if, for instance, a railroad company had terminals in one State equal in value to all the rest of the line through another, the latter State could not make use of the unity of the road to equalize the value of every mile. That would be taxing property outside of the State under a pretense." Fargo v. Hart, 193 U.S. 490, 499-500, 24 S.Ct. 498, 500, 48 L.Ed. 761. 54 In this case the "notion of organic unity" of Mobil's far-flung operations is applied solely for the purpose of making a fair determination of its Vermont earnings. Mobil does not dispute Vermont's right to treat its operations in Vermont as part of a unitary business and to measure the income attributable to Vermont on the basis of the three-factor formula that compares payroll, sales, and tangible properties in that State with the values of those factors in the whole of the unitary business. Mobil's position, simply stated, is that it is grossly unfair to assign any part of its investment income to Vermont on the basis of those factors. To evaluate that position, it is necessary to identify the unitary business that produces the income subject to taxation by Vermont. II 55 Mobil's operations in Vermont consist solely of wholesale and retail marketing of petroleum products. Those operations are a tiny part of a huge unitary business that might be defined in at least three different ways. 56 First, as Mobil contends, the business might be defined to include all of its operations, but to exclude the income derived from dividends paid by legally separate entities.7 57 Second, as the Supreme Court of Vermont seems to have done,8 the unitary business might be defined to include not only all of Mobil's operations, but also the income received from all of its investments in other corporations, regardless of whether those other corporations are engaged in the same kind of business as Mobil,9 and regardless of whether Mobil has a controlling interest in those corporations.10 58 Third, Mobil's unitary business might be defined as encompassing not only the operations of the taxpayer itself but also the operations of all affiliates that are directly or indirectly engaged in the petroleum business. The Court seems to assume that this definition justifies Vermont's assessment in this case. 59 Mobil does not contend that it would be unfair for Vermont to apply its three-factor formula to the first definition of its unitary business. It has no quarrel with apportionment formulas generally, not even Vermont's. But by consistently arguing that its income from dividends should be entirely excluded from the apportionment calculation, Mobil has directly challenged any application of Vermont's formula based on either the second or the third definition of its unitary business. I shall briefly explain why the record is sufficient to support that challenge. III 60 Under the Supreme Court of Vermont's conception of the relevant unitary business—the second of the three alternative definitions just posited—there is no need to consider the character of the operations of the corporations that have paid dividends to Mobil. For Vermont automatically included all of the taxpaying entity's investment income in the tax base. Such an approach simply ignores the raison d'etre for apportionment formulas. 61 We may assume that there are cases in which it would be appropriate to regard modest amounts of investment income as an incidental part of a company's overall operations and to allocate it between the taxing State and other jurisdictions on the basis of the same factors as are used to allocate operating income.11 But this is not such a case. Mobil's investment income is far greater than its operating income.12 Clearly, it is improper simply to lump huge quantities of investment income that have no special connection with the taxpayer's operations in the taxing State into the tax base and to apportion it on the basis of factors that are used to allocate operating income.13 The Court does not reject this reasoning; rather, its opinion at least partly disclaims reliance on any such theory.14 62 The Court appears to rely squarely on the third alternative approach to defining a unitary business. It assumes that Vermont's inclusion of the dividends in Mobil's apportionable tax base is predicated on the motion that the dividends represent the income of what would be the operating divisions of the Mobil Oil Corporation if Mobil and its affiliates were a single, legally integrated enterprise, rather than a corporation with numerous interests in other, separate corporations that pay it dividends. Ante, at 440-441.15 Theoretically, that sort of definition is unquestionably acceptable.16 But there are at least three objections to its use in this case. 63 First, notwithstanding the Court's characterization of the record, it is readily apparent that a large number of the corporations in which Mobil has small minority interests and from which it derived significant dividend income would seem neither to be engaged in the petroleum business nor to have any connection whatsoever with Mobil's marketing business in Vermont.17 Second, the record does not disclose whether the earnings of the companies that pay dividends to Mobil are even approximately equal to the amount of the dividends.18 64 But of greatest importance, the record contains no information about the payrolls, sales or property values of any of those corporations, and Vermont has made no attempt to incorporate them into the apportionment formula computa tions.s Unless the sales, payroll, and property values connected with the production of income by the payor corporations are added to the denominator of the apportionment formula, the inclusion of earnings attributable to those corporations in the apportionable tax base will inevitably cause Mobil's Vermont income to be overstated.19 65 Either Mobil's worldwide "petroleum enterprise," ante at 435, is all part of one unitary business, or it is not; if it is, Vermont must evaluate the entire enterprise in a consistent manner. As it is, it has indefensibly used its apportionment methodology artificially to multiply its share of Mobil's 1970 taxable income perhaps as much as tenfold.20 In my judgment, the record is clearly sufficient to establish the validity of Mobil's objections to what Vermont has done here. IV 66 The Court does not confront these problems because it concludes that Mobil has in effect waived any objections with respect to them. Although the Court's effort to avoid constitutional issues by narrowly constricting its holding is commendable, I believe it has seriously erred in its assessment of the procedural posture of this case. 67 It is true that appellant has disclaimed any dispute with "Vermont's method of apportionment." Brief for Appellant 11. And, admittedly, appellant has confused its cause by variously characterizing its attack in its main brief and reply brief. But contrary to the Court's assertions, see nn. 1, 3, supra, appellant did not disclaim any dispute with the accuracy or fairness of the application of the formula in this case. Mobil merely disclaimed any attack on Vermont's method of apportionment generally to contrast its claims in this case with the sort of challenge to Iowa's single-factor formula that was rejected in Moorman. 68 The question whether Vermont may include investment income in the apportionable tax base should not be answered in the abstract without consideration of the other factors in the allocation formula. The apportionable tax base is but one multiplicand in the formula. Appellant's challenge to the inclusion of investment income in that component necessarily carries with it a challenge to the product. 69 Because of the inherent interdependence of the issues in a case of this kind, it seems clear to me that Mobil has not waived its due process objections to Vermont's assessment. Appellant's disclaimer of a Moorman style attack cannot fairly be interpreted as a concession that makes its entire appeal a project without a purpose. On the contrary, its argument convincingly demonstrates that the inclusion of its dividend income in the apportionable tax base has produced a palpably arbitrary measure of its Vermont income. 70 In sum, if Vermont is to reject Mobil's calculation of its tax liability, two courses are open to it: (1) it may exclude Mobil's investment income from the apportionable tax base and also exclude the payroll and property used in managing the investments from the denominator of the apportionment factor; or (2) it may undertake the more difficult and risky task of trying to create a consolidated income statement of Mobil's entire unitary business, properly defined. The latter alternative is permissible only if the statement fairly summarizes consolidated earnings, and takes the payroll, sales, and property of the payor corporations into account. Because Vermont has employed neither of these alternatives, but has used a method that inevitably overstates Mobil's earnings in the State, I would reverse the judgment of the Supreme Court of Vermont. 1 Appellant has supplied the following table listing the number of foreign subsidiary (more than 50% owned) and nonsubsidiary corporations, as well as domestic nonsubsidiary corporations, of which, on December 31 of the taxable year, it owned directly or indirectly 5% or more of the capital stock: 1970 1971 1972 Foreign Sbubsidiary Corporations 203 208 216 Foreign Nonsubsidiary Corporations 185 189 197 Domestic Nonsubsidiary Corporations 26 27 27 App. 82. 2 For the same taxable years, appellant reported aggregate sales of $3,577,148,701, $3,889,353,228, and $4,049,824,161, respectively; total payroll of $380,818,887, $400,087,593, and $428,900,681, respectively; and property valued in the aggregate at $2,871,922,965, $2,995,950,125 and $3,291,757,721, respectively. Id., at 35, 49, 63. For 1972, which is not unrepresentative, the ratios of appellant's Vermont sales, payroll, and property to its sales, payroll, and property "everywhere" were approximately .24%, .06% and .25%, respectively. Id., at 63, 64. 3 Section 5811(18) states in pertinent part: " 'Vermont net income' means, for any taxable year and for any corporate taxpayer, the taxable income of the taxpayer for that taxable year under the laws of the United States, excluding income which under the laws of the United States is exempt from taxation by the states." 4 Section 5833 (1970 and Supp.1978) provides in pertinent part: "(a) . . . If the income of a taxable corporation is derived from any trade, business, or activity conducted both within and without this state, the amount of the corporation's Vermont net income which shall be apportioned to this state, so as to allocate to this state a fair and equitable portion of that income, shall be determined by multiplying that Vermont net income by the arithmetic average of the following factors: "(1) The average of the value of all the real and tangible property within this state (A) at the beginning of the taxable year . . . and (B) at the end of the taxable year, expressed as a percentage of all such property both within and without this state; "(2) The total wages, salaries, and other personal service compensation paid during the taxable year to employees within this state, expressed as a percentage of all such compensation paid whether within or without this state; "(3) The gross sales, or charges for services performed, within this state, expressed as a percentage of such sales or charges whether within or without this state." 5 This information is taken from appellant's Vermont income tax returns, to which copies of its federal returns were attached. App. 33-73. It appears that the major share of appellant's dividend income for the three years was received from three wholly owned subsidiaries incorporated abroad (Mobil Marine Transportation, Ltd.; Mobil Oil Iraq with Limited Liability; and Pegasus Overseas, Ltd.) and from one affiliate incorporated in Delaware (Arabian American Oil Co. (ARAMCO)) of which appellant owned 10% of the capital stock. Id., at 75-78. 6 Appellant subtracted amounts representing interest and foreign taxes as well as dividends. It no longer presses its claim that interest and taxes should have been excluded from Vermont's preapportionment tax base. Appellant's original calculations for the years in question were as follows: Year 1970 Federal Taxable Income $220,035,244.23 Less: Nonapportionable Income Dividends $174,211,073.60 Interest 10,520,792.51 Foreign Taxes 12,221,476.88 Total 196,953,342.99 Apportionable Income $23,081,901.24 Net Income Allocable to Vermont 30,361.11 Total Vermont Tax $1,821.67 Year 1971 Federal Taxable Income $308,253,570.02 Less Nonapportionable Income Dividends $282,817,008.65 Interest 12,609,826.23 Foreign Taxes 34,659,576.05 Total 330,086,410.93 Apportionable Income ($21,832,840.91) Net Income Allocable to Vermont 0.00 Total Vermont Tax (minimum tax) $25.00 Year 1972 Federal Taxable Income $232,825,728.27 Less: Nonapportionable Income Dividends $280,623,403.93 Interest 3,905,208.04 Foreign Taxes 38,260,249.40 Total 322,788,861.37 Apportionable Income ($89,963,133.20) Net Income Allocable to Vermont 0.00 Total Vermont Tax (minimum tax) $25.00 App. 37, 34; 51, 48; 65, 62. 7 The Department calculated Mobil's tax liability for 1970 at $19,078.56; for 1971 at $31,955.52; and for 1972 at $25,384.69. App. to Juris. Statement 1a. 8 Section 5833(b) provides: "If the application of the provisions of this section does not fairly represent the extent of the business activities of a corporation within this state, the corporation may petition for, or the commissioner may require, with respect to all or any part of the corporation's business activity, if reasonable: "(1) Separate accounting; "(2) The exclusion or modification of any or all of the factors; "(3) The inclusion of one or more additional factors which will fairly represent the corporation's business activity in this state; or "(4) The employment of any other method to effectuate an equitable allocation and apportionment of the corporation's income." By amendment effected by 1971 Vt.Laws, No. 73, § 16, the words "any or all" in subsection (2) replaced the words "either or both." 9 In reaching this decision, the Commissioner followed F. W. Woolworth Co. v. Commissioner of Taxes, 130 Vt. 544, 298 A.2d 839 (1972), and Gulf Oil Corp. v. Morrison, 120 Vt. 324, 141 A.2d 671 (1958). App. to Juris. Statement 6a-7a, 9a-11a. He also rejected, for lack of proof, Mobil's petition for modification of the apportionment formula: "Any diversion from the standard formula imposes a strong burden of proof on the taxpayer to show that the formula does not fairly represent its business activities in the State of Vermont. . . . Mobil has made no such showing in this case." Id., at 11a. The Commissioner did allow a modification of the method of dividend "gross-up" for the year 1970 in a manner consistent with F. W. Woolworth Co. v. Commissioner of Taxes, 133 Vt. 93, 328 A.2d 402 (1974). This modification is not germane to the present controversy. 10 The Court also observed, 136 Vt., at 547-548, 394 A.2d, at 1149, that due process contentions similar to those advanced by Mobil here had been rejected in two Vermont cases that came down after the decision in the present case in the Superior Court. In re Goodyear Tire & Rubber Co., 133 Vt. 132, 335 A.2d 310 (1975); F. W. Woolworth Co. v. Commissioner of Taxes, 133 Vt. 93, 328 A.2d 402 (1974). 11 The dissent raises de novo the issue of appellant's dividend receipts from stockholdings in corporations that apparently operate principally in the United States. See post, at 455-457, 460-461. This issue is not encompassed in the questions presented by appellant. See Juris. Statement 2-3. 12 Under the Vermont tax scheme, income falling into this category is subject to apportionment only in part. Because Vermont's statute is geared to the definition of taxable income under federal law, it excludes from the preapportionment tax base 85% of all dividends earned from domestic corporations in which the taxpayer owns less than 80% of the capital stock, and 100% of all dividends earned from domestic corporations in which the taxpayer owns 80% or more of the capital stock. See § 243 of the Internal Revenue Code of 1954, as amended, 26 U.S.C. § 243; Vt.Stat.Ann., Tit. 32, § 5811(18) (1970 and Supp.1978). 13 Application of the Vermont three-factor formula for the three years resulted in attributing to the State the following percentages of the corporation's net income: 1970 0.146032% 1971 0.173647% 1972 0.182151% App. 36, 50, 64. 14 See United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 473-474, nn. 25, 26, 98 S.Ct. 799, 813, nn. 25, 26, 54 L.Ed.2d 682 (1978). For scholarly discussions of the unitary-business concept see G. Altman & F. Keesling, Allocation of Income in State Taxation 97-102 (2d ed. 1950); Dexter, Taxation of Income from Intangibles of Multistate-Multinational Corporations, 29 Vand.L.Rev. 401 (1976); Hellerstein, Recent Developments in State Tax Apportionment and the Circumscription of Unitary Business, 21 Nat.Tax J. 487, 496 (1968); Keesling & Warren, The Unitary Concept in the Allocation of Income, 12 Hastings L.J. 42 (1960); Rudolph, State Taxation of Interstate Business: The Unitary Business Concept and Affiliated Corporate Groups, 25 Tax L.Rev. 171 (1970). 15 In its reply brief, Mobil submits a new due process argument based on Vermont's failure to require "combined apportionment" which, while including the income of subsidiaries and affiliates as part of appellant's net income, would eliminate intercorporate transfers, such as appellant's dividend income, from that calculation. A necessary concomitant of this would be inclusion of the subsidiaries' and affiliates' sales, payroll, and property in the calculation of the apportionment formula. Reply Brief for Appellant 1-6. The result, presumably, would be advantageous to appellant, since virtually nothing would be added to the "Vermont" numerators of the apportionment factors, while there would be substantial increases in the "everywhere" denominators, resulting in a diminution of the apportionment fraction. This argument appears to be an afterthought that was not presented to the Vermont tax authorities or to the courts of that State. The evidence in the record surely is inadequate to evaluate the effect of the proposal, its relative impact on appellant, or its potential implications. Moreover, the principal focus of this suggestion is the apportionment formula, not the apportionability of foreign source income. Appellant, we reiterate, took this appeal on the assumption that Vermont's apportionment formula was fair. At this juncture and on these facts, we need not, and do not, decide whether combined apportionment of this type is constitutionally required. In any event, we note that appellant's latter-day advocacy of this combined approach virtually concedes that income from foreign sources, produced by the operations of subsidiaries and affiliates, as a matter of due process is attributable to the parent and amendable to fair apportionment. That is all we decide today. 16 The dissent argues that unrelated business activity is "readily apparent" from the record because "a large number of the corporations . . . from which [Mobil] derived significant dividend income would seem neither to be engaged in the petroleum business nor to have any connection whatsoever with Mobil's marketing business in Vermont." Post, at 460 (emphasis added). The only evidence advanced in support of this assertion is a list of the names of corporations whose dividend payments are not at issue. See n. 11, supra. Furthermore, it may bear repeating that the burden of proof rests upon the appellant and not upon the Commissioner of Taxes. The absence of evidence in the record to decide the issues on which the dissent speculates, post, at 460-461, cuts against and not in favor of appellant's cause. 17 In particular, there has been a flurry of litigation in state courts over the Commerce Clause implications of apportioned taxation of income from intangibles. See, e. g., Qualls v. Montgomery Ward & Co., 266 Ark. 207, 585 S.W.2d 18 (1979); American Smelting & Refining Co. v. Idaho Tax Comm'n, 99 Idaho 924, 592 P.2d 39 (1979), appeal docketed sub nom. ASARCO Inc. v. Idaho Tax Comm'n, No. 78-1839; W. R. Grace & Co. v. Commissioner of Revenue, 378 Mass. 577, 393 N.E.2d 330 (1979); Montana Dept. of Revenue v. American Smelting & Refining Co., 173 Mont. 316, 567 P.2d 901 (1977), appeal dism'd, 434 U.S. 1042, 98 S.Ct. 884, 54 L.Ed.2d 793 (1978). 1 Moreover, in the last few sentences of n.15, ante, at 441, the Court emphatically repeats that it has decided nothing more than that the Due Process Clause does not preclude the attribution of foreign-source income to a parent and subjecting such income to fair apportionment. It states: "Appellant, we reiterate, took this appeal on the assumption that Vermont's apportionment formula was fair. At this juncture and on these facts, we need not, and do not, decide whether combined apportionment of this type is constitutionally required. In any event, we note that appellant's latter-day advocacy of this combined approach virtually concedes that income from foreign sources, produced by the operations of subsidiaries and affiliates, as a matter of due process is attributable to the parent and amenable to fair apportionment. That is all we decide today." 2 Ante, at 435. See also ante at 441-442: "We do not mean to suggest that all dividend income received by corporations operating in interstate commerce is necessarily taxable in each State where that corporation does business. Where the business activities of the dividend payor have nothing to do with the activities of the recipient in the taxing State, due process considerations might well preclude apportionability, because there would be no underlying unitary business. We need not decide, however, whether Vermont's tax statute would reach extraterritorial values in an instance of that kind. Cf. Underwood Typewriter Co. v. Chamberlain, 254 U.S. [113], [41 S.Ct., at 47]. Mobil has failed to sustain its burden of proving any unrelated business activity on the part of its subsidiaries and affiliates that would raise the question of nonapportionability." 3 "In keeping with its litigation strategy, appellant has disclaimed any dispute with the accuracy or fairness of Vermont's apportionment formula. See Juris. Statement 10; Brief for Appellant 11. Instead, it claims that dividends from a 'foreign source' by their very nature are not apportionable income. This election to attack the tax base rather than the formula substantially narrows the issues before us. In deciding this appeal, we do not consider whether application of Vermont's formula produced a fair attribution of appellant's dividend income to that State." Ante, at 434. 4 As we said in Moorman Mfg. Co. v. Bair, 437 U.S. 267, 272-273, 98 S.Ct. 2340, 2344, 57 L.Ed.2d 197: "The Due Process Clause places two restrictions on a State's power to tax income generated by the activities of an interstate business. First, no tax may be imposed, unless there is some minimal connection between those activities and the taxing State. National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 756 [87 S.Ct. 1389, 1390, 18 L.Ed.2d 505]. This requirement was plainly satisfied here. Second, the income attributed to the State for tax purposes must be rationally related to 'values connected with the taxing State.' Norfolk & Western R. Co. v. State Tax Comm'n, 390 U.S. 317, 325 [88 S.Ct. 995, 1001, 19 L.Ed.2d 1201]." See also Rudolph, State Taxation of Interstate Business: The Unitary Business Concept and Affiliated Corporate Groups, 25 Tax L.Rev. 171, 181 (1970) (hereinafter State Taxation): "The basic proposition can be simply stated: At least as far as nondomiciliary corporations are concerned, a state may only tax income arising from sources within the state. Or, put differently, it cannot give its income tax extraterritorial effect." To put it still differently, if, in a particular case, use of an allocation formula has the effect of taxing income earned by an interstate entity outside the State, it could alternatively be said to have the effect of taxing the income earned by that entity inside the State at a rate higher than that used for a comparable, wholly intrastate business, a discrimination that violates the Commerce Clause. 5 See, e. g., Keesling & Warren, The Unitary Concept In the Allocation of Income, 12 Hastings L.J. 42, 48 (1960): "In applying the foregoing definitions, it must be kept clearly in mind that although in particular instances all the activities of a given taxpayer may constitute a single business, in other instances the activities may be segregated or divided into a number of separate businesses. It is only where the activities within and without the state constitute inseparable parts of a single business that the classification of unitary should be used." 6 In Butler Bros., the Court pointed out that no showing had been made that "income unconnected with the unitary business has been used in the formula," 315 U.S., at 509, 62 S.Ct., at 705. And in Moorman Mfg. Co., supra, we noted: " 'Interest, dividends, rents, and royalties (less related expenses) received in connection with business in the state, shall be allocated to the state, and where received in connection with business outside the state, shall be allocated outside of the state.' Iowa Code § 422.33(1)(a ) [(1977)]. "In describing this section, the Iowa Supreme Court stated that 'certain income, the geographical source of which is easily identifiable, is allocated to the appropriate state.' 254 N.W.2d 737, 739. Thus, for example, rental income would be attributed to the State where the property was located. And in appellant's case, this section operated to exclude its investment income from the tax base." 437 U.S., at 269, n.1, 98 S.Ct., at 2343, n.1. See also State Taxation 185. 7 Under this definition, Mobil computes its Vermont tax base for 1970 at approximately $23 million. On the basis of Vermont's three-factor formula, it computes Vermont's share of its total operating income as .146%, and it attributes the remaining 99.854% of the total to other locations. Using those figures, Mobil stated its Vermont taxable income to be approximately $30,000, which, when multiplied by 6%, the applicable tax rate, produced a total tax liability for 1970 of $1,821.67. It would seem that in defining the unitary business in this way, it would be open to Vermont to exclude the payroll and property connected with the management of Mobil's investment income from the denominator of the apportionment factor, which would effectively raise Vermont's share of Mobil's total operating income above the .146% figure. Thus, while I believe that the amount Vermont claims Mobil earned in the State is obviously excessive, it is also probably true that Mobil's Vermont earnings for 1970 are somewhat greater than the approximately $30,000 it computed. 8 136 Vt. 545, 546, 394 A.2d 1147, 1148 (1978). 9 Vermont has treated Mobil's dividend income from the following corporations as part of the relevant unitary business: Baltimore Gas & Electric Bank of New York Business Development Corporation of N. C. Cincinnati Gas & Electric Connecticut Gas & Power Canner's Steam Company, Inc. Continental Oil and Asphalt Company Dallas Power & Light Dayton Power & Light Duke Power Company Duquesne Light Company Florida Power Corporation General Royalties Gulf States Utilities Company Hartford Electric Light Company Houston Lighting and Power Company Illinois Power Company Monongahela Power Company Northern Indiana Public Service Company Northern State Power Company Pacific Gas and Electric Company Pacific Lighting Corporation Public Service Electric & Gas Company Rochester Gas & Electric Company San Diego Gas & Electric Company Southern California Edison Company Texas Electric Service Company Texas Power & Light Company Union Electric Company United Illuminating Company West Penn Power Company Atlantic City Electric Company Brooklyn Union Gas Company Detroit Edison Company Iowa-Illinois Gas & Electric Company Indiana & Michigan Electric Company Philadelphia Electric Company Public Service Company of Colorado New York Incorporated Corporation See App. 77-78. 10 Mobil has only small minority interests in the corporations listed in footnote 9. It also received dividends in 1970 of over $115 million from a 10% interest in the Arabian American Oil Company. By including Mobil's dividend income, some $174 million in 1970, in the apportionable tax base, and multiplying the apportionable tax base thus comprised by .146%, Vermont computed Mobil's 1970 tax liability to be $19,078.56. 11 Because there is no necessary correlation between the levels of profitability of investment income and marketing income, if more than incidental amounts of investment income are used in an averaging formula intended to measure marketing income, inaccuracy is sure to result. 12 For the year 1970, appellant had dividend income of approximately $174 million as compared with what it calculated to be apportionable income of approximately $23 million. This case is therefore comparable to the example given by Keesling and Warren in their article, The Unitary Concept in the Allocation of Income, 12 Hastings L.J. 42, 52-53 (1960): "Example 1. A company with a commercial domicile in California, where its headquarters are located, is engaged in the operation of a system of railway lines throughout the western part of the United States. Over the years it has accumulated large reserves which are invested for the most part in stocks and bonds of other companies, from which it derives substantial income in the form of dividends and interest. The investment activities are carried on in the headquarters' office where the railroad operations are managed and controlled. Some individuals devote their entire time to the investment activities, whereas others, including a number of officers, devote part of their time to both the investment activities and the railroad operations. "Although both activities are commonly owned and managed, and there is some common use of personnel and facilities, and although some practical difficulties may be experienced in segregating the expenses of the investment activities, clearly it would be wrong to consider that the company is engaged in only one business and that the entire income of the company should be apportioned within and without the state by means of a formula. Notwithstanding the common elements, there are two distinct series of income-producing activities. This conclusion follows from the fact that the income from dividends and interest can be identified as being derived from the stocks and bonds and the activities related thereto, and not in any way attributable to the general railroad operations carried on within and without the state. Since stocks and bonds and other intangibles are considered to have a location at the commercial domicile of the owner, and since all of the investment activities take place in California, the investment income should be computed separately and assigned entirely to California. "The income from the railroad operations can likewise be identified as being derived from a distinct series of transactions, which should be considered as constituting a business separate and distinct from the investment activities. Since the railroad operations are carried on partly within and partly without the state, it is a unitary business and hence the income from the railway business as a whole should first be computed and apportioned within and without California by means of an appropriate allocation formula." (Footnote omitted.) 13 No one could seriously maintain that if a wealthy New York resident should open a gas station in Vermont, Vermont could use his dividends as a measure of the profitability of his gas station. 14 See n.2, supra. 15 "Had appellant chosen to operate its foreign subsidiaries as separate divisions of a legally as well as a functionally integrated enterprise, there is little doubt that the income derived from those divisions would meet due process requirements for apportionability. Cf. General Motors Corp. v. Washington, 377 U.S. 436, 441, 84 S.Ct. 1564, 1568, 12 L.Ed.2d 430 (1964). Transforming the same income into dividends from legally separate entities works no change in the underlying economic realities of a unitary business, and accordingly it ought not to affect the apportionability of income the parent receives." 16 "It seems clear, strictly as a logical proposition, that foreign source income is no different from any other income when it comes to determining, by formulary apportionment, the appropriate share of the income of a unitary business taxable by a particular state. This does not involve state taxation of foreign source income any more than does apportionment—in the case of a multistate business—involve the taxation of income arising in other states. In both situations the total income of the unitary business simply provides the starting point for computing the in-state income taxable by the particular state. . . . "Obviously, if the foreign source income is included in the base for apportionment, foreign property, payrolls and sales must be included in the apportionment fractions. This was recognized in Bass [Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. 271, 45 S.Ct. 82, 69 L.Ed. 282]. . . ." State Taxation 205. 17 See n. 9, supra. 18 A corporation's decision as to how much of its earnings to pay out in dividends is subject to many variables. Nothing says that 100% must be passed through to the stockholders. A corporation is not a partnership. Indeed, depending on the state of the corporation's finances, dividends could conceivably even exceed 100% of the earnings. In any event, at least for those corporations in which it has only a minority interest, Mobil cannot control the percentage of their earnings that is paid out in dividends. 19 See n.16, supra. 20 The net result of the inclusion of the out-of-state investment income and the exclusion of the sales, payroll, and property factors that produce that investment income is to increase Mobil's tax liability to Vermont for 1970 from the $1,821.67 computed by Mobil to $19,078.56.

78

445 U.S. 326 100 S.Ct. 1166 63 L.Ed.2d 427 DEPOSIT GUARANTY NATIONAL BANK, JACKSON, MISSISSIPPI, Petitioner,v.Robert L. ROPER et al. No. 78-904. Argued Oct. 2, 1979. Decided March 19, 1980. Rehearing Denied May 12, 1980. See 446 U.S. 947, 100 S.Ct. 2177. Syllabus Respondents, holders of credit cards issued by petitioner bank, sued petitioner for damages in Federal District Court, seeking to represent both their own interests and those of a class of similarly situated credit card customers. The complaint, based on the National Bank Act, alleged that usurious finance charges had been made against the accounts of respondents and the putative class. The District Court denied respondents' motion to certify the class, ruling that the circumstances did not meet all the requirements of Federal Rule of Civil Procedure 23(b)(3). After the Court of Appeals denied respondents' motion for interlocutory appeal, petitioner tendered to each respondent the maximum amount that each could have recovered, but respondents refused to accept the tender. The District Court, over respondents' objections, then entered judgment in their favor on the basis of the tender and dismissed the action, the amount of the tender being deposited by petitioner in the court's registry. Respondents thereafter sought review of the class certification ruling, and the Court of Appeals concluded, inter alia, that the case had not been mooted by the entry of judgment in respondents' favor and reversed the adverse certification ruling. Held : Neither petitioner's tender nor the District Court's entry of judgment in favor of respondents over their objections mooted their private case or controversy, and their individual interest in the litigation—as distinguished from whatever may be their representative responsibilities to the putative class—is sufficient to permit their appeal of the adverse certification ruling. Pp. 331-340. (a) In an appropriate case appeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying Art. III's case-or-controversy requirements. Here, neither the rejected tender nor the dismissal of the action over respondents' objections mooted their claim on the merits so long as they retained an economic interest in class certification. Pp. 332-335. (b) The denial of class certification is an example of a procedural ruling, collateral to the merits of a litigation, that is appealable after the entry of final judgment. The denial of certification stands as an adjudication of one of the issues litigated. Respondents have asserted throughout this appellate litigation a continuing individual interest in the resolution of the class certification question in their desire to shift part of the costs of litigation to those who will share in its benefits if the class is certified and ultimately prevails. Thus, they are entitled to have this portion of the District Court's judgment reviewed. To deny the right to appeal simply because the defendant has sought to "buy off" the individual claims of the named plaintiffs would be contrary to sound judicial administration. Pp. 336-340. 578 F.2d 1106, affirmed. William F. Goodman, Jr., Jackson, Miss., for petitioner. Champ Lyons, Jr., Mobile, Ala., for respondents. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to decide whether a tender to named plaintiffs in a class action of the amounts claimed in their individual capacities, followed by the entry of judgment in their favor on the basis of that tender, over their objection, moots the case and terminates their right to appeal the denial of class certification. 2 * Respondents, holders of credit cards issued on the "BankAmericard" plan by petitioner Deposit Guaranty National Bank, sued the bank in the United States District Court for the Southern District of Mississippi, seeking to represent both their own interests and those of a class of similarly aggrieved customers. The complaint alleged that usurious finance charges had been made against the accounts of respondents and a putative class of some 90,000 other Mississippi credit card holders. 3 Respondents' cause of action was based on provisions of the National Bank Act, Rev.Stat. §§ 5197, 5198, as amended, 12 U.S.C. §§ 85, 86. Section 85 permits banks within the coverage of the Act to charge interest "at the rate allowed by the laws of the State, Territory, or District where the bank is located." In a case where a higher rate of interest than allowed has been "knowingly" charged, § 86 allows a person who has paid the unlawful interest to recover twice the total interest paid.1 4 The modern phenomenon of credit card systems is largely dependent on computers, which perform the myriad accounting functions required to charge each transaction to the customer's account. In this case, the bank's computer was programmed so that, on the billing date, it added charges, subtracted credits, added any finance charges due under the BankAmericard plan, and prepared the customers' statements. During the period in question, the bank made a monthly service charge of 11/2% on the unpaid balance of each account. However, customers were allowed 30 days within which to pay accounts without any service charge. If payment was not received within that time, the computer added to the customer's next bill 11/2% of the unpaid portion of the prior bill, which was shown as the new balance. The actual finance charges paid by each customer varied depending on the stream of transactions and the repayment plan selected. In addition, the effective annual interest rate paid by a customer would vary because the same 11/2% service charge was assessed against the unpaid balance no matter when the charged transactions occurred within the 30-60-day period prior to the billing date. This 11/2% monthly service charge is asserted to have been usurious because under certain circumstances the resulting effective annual interest rate allegedly exceeded the maximum interest rate permitted under Mississippi law. 5 The District Court denied respondents' motion to certify the class, ruling that the circumstances did not meet all the requirements of Federal Rule of Civil Procedure 23(b)(3).2 The District Court certified the order denying class certification for discretionary interlocutory appeal, pursuant to 28 U.S.C. § 1292(b); the proceedings were stayed for 30 days pending possible appellate review of the denial of class certification. 6 The United States Court of Appeals for the Fifth Circuit denied respondents' motion for interlocutory appeal. The bank then tendered to each named plaintiff, in the form of an "Offer of Defendants to Enter Judgment as by Consent and Without Waiver of Defenses or Admission of Liability," the maximum amount that each could have recovered. The amounts tendered to respondents Roper and Hudgins were $889.42 and $423.54, respectively, including legal interest and court costs. Respondents declined to accept the tender and made a counteroffer of judgment in which they attempted to reserve the right to appeal the adverse class certification ruling. This counteroffer was declined by the bank. 7 Based on the bank's offer, the District Court entered judgment in respondents' favor, over their objection, and dismissed the action. The bank deposited the amount tendered into the registry of the court, where it remains. At no time has any putative class member sought to intervene either to litigate the merits or to appeal the certification ruling. It appears that by the time the District Court entered judgment and dismissed the case, the statute of limitations had run on the individual claims of the unnamed class members.3 8 When respondents sought review of the class certification ruling in the Court of Appeals, the bank argued that the case had been mooted by the entry of judgment in respondents' favor. In rejecting the bank's contention, the court relied in part on United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), in which we held that a member of the putative class could appeal the denial of class certification by intervention, after entry of judgment in favor of the named plaintiff, but before the statutory time for appeal had run. Roper v. Consurve, Inc., 578 F.2d 1106 (CA5 1978). Two members of the panel read Rule 23 as providing for a fiduciary-type obligation of the named plaintiffs to act in a representative capacity on behalf of the putative class by seeking certification at the outset of the litigation and by appealing an adverse certification ruling. In that view, the District Court also had a responsibility to ensure that any dismissal of the suit of the named plaintiffs did not prejudice putative class members. One member of the panel, concurring specially, limited the ruling on mootness to the circumstances of the case, i. e., that, after filing of a class action, the mere tender of an offer of settlement to the named plaintiffs, without acceptance, does not moot the controversy so as to prevent the named plaintiffs from appealing an adverse certification ruling. 9 Having rejected the bank's mootness argument, the Court of Appeals reviewed the District Court's ruling on the class certification question. It concluded that all the requisites of Rule 23 had been satisfied and accordingly reversed the adverse certification ruling; it remanded with directions to certify the class and for further proceedings. 10 Certiorari was sought to review the holdings of the Court of Appeals on both mootness and class certification. We granted the writ, limited to the question of mootness, to resolve conflicting holdings in the Courts of Appeals.4 440 U.S. 945, 99 S.Ct. 1421, 59 L.Ed.2d 633. II 11 We begin by identifying the interests to be considered when questions touching on justiciability are presented in the class-action context. First is the interest of the named plaintiffs: their personal stake in the substantive controversy and their related right as litigants in a federal court to employ in appropriate circumstances the procedural device of a Rule 23 class action to pursue their individual claims. A separate consideration, distinct from their private interests, is the responsibility of named plaintiffs to represent the collective interests of the putative class. Two other interests are implicated: the rights of putative class members as potential intervenors, and the responsibilities of a district court to protect both the absent class and the integrity of the judicial process by monitoring the actions of the parties before it. 12 The Court of Appeals did not distinguish among these distinct interests. It reviewed all possible interests that in its view had a bearing on whether an appeal of the denial of certification should be allowed. These diverse interests are interrelated, but we distinguish among them for purposes of analysis, and conclude that resolution of the narrow question presented requires consideration only of the private interest of the named plaintiffs. A. 13 The critical inquiry, to which we now turn, is whether respondents' individual and private case or controversy became moot by reason of petitioner's tender or the entry of judgment in respondents' favor. Respondents, as holders of credit cards issued by the bank, claimed damages in their private capacities for alleged usurious interest charges levied in violation of federal law. Their complaint asserted that they had suffered actual damage as a result of illegal acts of the bank. The complaint satisfied the case-or-controversy requirement of Art. III of the Constitution. 14 As parties in a federal civil action, respondents exercised their option as putative members of a similarly situated cardholder class to assert their claims under Rule 23. Their right to assert their own claims in the framework of a class action is clear. However, the right of a litigant to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims. Should these substantive claims become moot in the Art. III sense, by settlement of all personal claims for example, the court retains no jurisdiction over the controversy of the individual plaintiffs. 15 The factual context in which this question arises is important. At no time did the named plaintiffs accept the tender in settlement of the case; instead, judgment was entered in their favor by the court without their consent and the case was dismissed over their continued objections.5 Neither the rejected tender nor the dismissal of the action over plaintiffs' objections mooted the plaintiffs' claim on the merits so long as they retained an economic interest in class certification. Although a case or controversy is mooted in the Art. III sense upon payment and satisfaction of a final, unappealable judgment, a decision that is "final" for purposes of appeal does not absolutely resolve a case or controversy until the time for appeal has run. Nor does a confession of judgment by defendants on less than all the issues moot an entire case; other issues in the case may be appealable. We can assume that a district court's final judgment fully satisfying named plaintiffs' private substantive claims would preclude their appeal on that aspect of the final judgment; however, it does not follow that this circumstance would terminate the named plaintiffs' right to take an appeal on the issue of class certification. 16 Congress has vested appellate jurisdiction in the courts of appeals for review of final decisions of the district courts. 28 U.S.C. § 1291. Ordinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom. A party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it. Public Service Comm'n v. Brashear Freight Lines, Inc., 306 U.S. 204, 59 S.Ct. 480, 83 L.Ed. 806 (1939); New York Telephone Co. v. Maltbie, 291 U.S. 645, 54 S.Ct. 443, 78 L.Ed. 1041 (1934); Corning v. Troy Iron & Nail Factory, 15 How. 451, 14 L.Ed. 768 (1854); 9 J. Moore, Federal Practice ¶ 203.06 (2d ed. 1975). The rule is one of federal appellate practice, however, derived from the statutes granting appellate jurisdiction and the historic practices of the appellate courts; it does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III.6 17 An illustration of this principle in practice is Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 59 S.Ct. 860, 83 L.Ed. 1263 (1939). In that case, respondents sued petitioners for infringement of a patent. In such a suit, the defense may prevail either by successfully attacking the validity of the patent or by successfully defending the charge of infringement. In Electrical Fittings the decree of the District Court adjudged the patent valid but dismissed the complaint for failure to prove infringement. The respondents did not appeal, but petitioners sought review in the Court of Appeals of so much of the decree as adjudicated the patent valid. Respondents filed a motion to dismiss the appeal "based on the ground that the appeal can raise no questions not already moot because of the fact that the [petitioners] have already been granted in the dismissal of the bill all the relief to which they are entitled." 100 F.2d 403, 404 (CA2 1938). The Court of Appeals dismissed the appeal on this ground after ruling that the decree of the District Court would not in subsequent suits, as a matter of collateral estoppel or otherwise, influence litigation on the issue of the patent's validity. On review here, this Court did not question the view that the ruling on patent validity would have no effect on subsequent litigation. Nevertheless, a unanimous Court allowed the appeal to reform the decree: 18 "A party may not appeal from a judgment or decree in his favor, for the purpose of obtaining a review of findings he deems erroneous which are not necessary to support the decree. But here the decree itself purports to adjudge the validity of [the patent], and though the adjudication was immaterial to the disposition of the cause, it stands as an adjudication of one of the issues litigated. We think the petitioners were entitled to have this portion of the decree eliminated, and that the Circuit Court of Appeals had jurisdiction, as we have held this court has, to entertain the appeal, not for the purpose of passing on the merits, but to direct the reformation of the decree." 307 U.S., at 242, 59 S.Ct., at 861 (footnotes omitted). 19 Although the Court limited the appellate function to reformation of the decree, the holding relevant to the instant case was that the federal courts retained jurisdiction over the controversy notwithstanding the District Court's entry of judgment in favor of petitioners. This Court had the question of mootness before it, yet because policy considerations permitted an appeal from the District Court's final judgment and because petitioners alleged a stake in the outcome, the case was still live and dismissal was not required by Art. III. The Court perceived the distinction between the definitive mootness of a case or controversy, which ousts the jurisdiction of the federal courts and requires dismissal of the case, and a judgment in favor of a party at an intermediate stage of litigation, which does not in all cases terminate the right to appeal.7 B 20 We view the denial of class certification as an example of a procedural ruling, collateral to the merits of a litigation, that is appealable after the entry of final judgment.8 The denial of class certification stands as an adjudication of one of the issues litigated. As in Electrical Fittings, the respondents here, who assert a continuing stake in the outcome of the appeal, were entitled to have this portion of the District Court's judgment reviewed. We hold that the Court of Appeals had jurisdiction to entertain the appeal only to review the asserted procedural error, not for the purpose of passing on the merits of the substantive controversy. 21 Federal appellate jurisdiction is limited by the appellant's personal stake in the appeal. Respondents have maintained throughout this appellate litigation that they retain a continuing individual interest in the resolution of the class certification question in their desire to shift part of the costs of litigation to those who will share in its benefits if the class is certified and ultimately prevails. See n. 6, supra. This individual interest may be satisfied fully once effect is given to the decision of the Court of Appeals setting aside what it held to be an erroneous District Court ruling on class certification. In Electrical Fittings, the petitioners asserted a concern that their success in some unspecified future litigation would be impaired by stare decisis or collateral-estoppel application of the District Court's ruling on patent validity. This concern supplied the personal stake in the appeal required by Art. III. It was satisfied fully when the petitioners secured an appellate decision eliminating the erroneous ruling from the decree. After the decree in Electrical Fittings was reformed, the then unreviewable judgment put an end to the litigation, mooting all substantive claims. Here the proceedings after remand may follow a different pattern, but they are governed by the same principles. 22 We cannot say definitively what will become of respondents' continuing personal interest in their own substantive controversy with the petitioner when this case returns to the District Court. Petitioner has denied liability to the respondents, but tendered what they appear to regard as a "nuisance settlement." Respondents have never accepted the tender or judgment as satisfaction of their substantive claims. Cf. Cover v. Schwartz, 133 F.2d 541 (CA2 1942). The judgment of the District Court accepting petitioner's tender has now been set aside by the Court of Appeals. We need not speculate on the correctness of the action of the District Court in accepting the tender in the first instance, or on whether petitioner may now withdraw its tender. 23 Perhaps because the question was not thought to be open to doubt, we have stated in the past, without extended discussion, that "an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff . . . ." Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). In Livesay, we unanimously rejected the argument, advanced in favor of affording prejudgment appeal as a matter of right, that an adverse class certification ruling came within the "collateral order" exception to the final-judgment rule. The appealability of the class certification question after final judgment on the merits was an important ingredient of our ruling in Livesay. For that proposition, the Court cited United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). That case involved, as does this, a judgment entered on the merits in favor of the named plaintiff. The McDonald Court assumed that the named plaintiff would have been entitled to appeal a denial of class certification. 24 The use of the class-action procedure for litigation of individual claims may offer substantial advantages for named plaintiffs; it may motivate them to bring cases that for economic reasons might not be brought otherwise.9 Plainly there has been a growth of litigation stimulated by contingent-fee agreements and an enlargement of the role this type of fee arrangement has played in vindicating the rights of individuals who otherwise might not consider it worth the candle to embark on litigation in which the optimum result might be more than consumed by the cost. The prospect of such fee arrangements offers advantages for litigation by named plaintiffs in class actions as well as for their attorneys.10 For better or worse, the financial incentive that class actions offer to the legal profession is a natural outgrowth of the increasing reliance on the "private attorney general" for the vindication of legal rights; obviously this development has been facilitated by Rule 23. 25 The aggregation of individual claims in the context of a classwide suit is an evolutionary response to the existence of injuries unremedied by the regulatory action of government. Where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device. That there is a potential for misuse of the class action mechanism is obvious. Its benefits to class members are often nominal and symbolic, with persons other than class members becoming the chief beneficiaries. But the remedy for abuses does not lie in denying the relief sought here, but with re-examination of Rule 23 as to untoward consequences. 26 A district court's ruling on the certification issue is often the most significant decision rendered in these class-action proceedings.11 To deny the right to appeal simply because the defendant has sought to "buy off" the individual private claims of the named plaintiffs would be contrary to sound judicial administration. Requiring multiple plaintiffs to bring separate actions, which effectively could be "picked off" by a defendant's tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement. It would be in the interests of a class-action defendant to forestall any appeal of denial of class certification if that could be accomplished by tendering the individual damages claimed by the named plaintiffs. Permitting appeal of the district court's certification ruling—either at once by interlocutory appeal, or after entry of judgment on the merits also minimizes problems raised by "forum shopping" by putative classepresentatives attempting to locate a judge perceived as sympathetic to class actions. 27 That small individual claims otherwise might be limited to local and state courts rather than a federal forum does not justify ignoring the overall problem of wise use of judicial resources. Such policy considerations are not irrelevant to the determination whether an adverse procedural ruling on certification should be subject to appeal at the behest of named plaintiffs. Courts have a certain latitude in formulating the standards that govern the appealability of procedural rulings even though, as in this case, the holding may determine the absolute finality of a judgment, and thus, indirectly, determine whether the controversy has become moot. 28 We conclude that on this record the District Court's entry of judgment in favor of named plaintiffs over their objections did not moot their private case or controversy, and that respondents' individual interest in the litigation—as distinguished from whatever may be their representative responsibilities to the putative class12—is sufficient to permit their appeal of the adverse certification ruling. 29 Affirmed. 30 Mr. Justice REHNQUIST, concurring. 31 I write briefly to state what seems to me to be sufficient differences between this case and United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479, to allow the appeal of the denial of class certification in this case, and to dismiss the attempted appeal of the same question in Geraghty as moot. If I were writing on a clean slate, I might well resolve both these cases against the respondents. But the Court today has not cleaned the slate or been successful in formulating any sound principles to replace what seem to me to be the muddled and inconsistent ones of the past. Compare Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), with Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); United Airlines, Inc. v. McDonald, 432 U.S. 385, 393, 97 S.Ct. 2464, 2469, 53 L.Ed.2d 423 (1977), with Pasadena City Bd. of Education v. Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 2702, 49 L.Ed.2d 599 (1976); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 470, n. 15, 98 S.Ct. 2454, 2458, 2459, n. 15, 57 L.Ed.2d 351 (1978), with Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); and now this case, with United States Parole Comm'n v. Geraghty. 32 Article III, and this Court's precedents in Jacobs, supra, and Spangler, supra, require dismissal of the action in Geraghty because there is simply no individual interest remaining, no certified class or intervenors to supply that interest, and the action is not within that "narrow class of cases" that are "distinctly 'capable of repetition, yet evading review.' " Gerstein v. Pugh, 420 U.S. 103, 110, n. 11, 95 S.Ct. 854, 861, n. 11, 43 L.Ed.2d 54 (1975). The facts in this case, in contrast, fit within the framework of the precedents permitting continuation of the action. 33 The distinguishing feature here is that the defendant has made an unaccepted offer of tender in settlement of the individual putative representative's claim. The action is moot in the Art. III sense only if this Court adopts a rule that an individual seeking to proceed as a class representative is required to accept a tender of only his individual claims. So long as the court does not require such acceptance, the individual is required to prove his case and the requisite Art. III adversity continues. Acceptance need not be mandated under our precedents since the defendant has not offered all that has been requested in the complaint (i. e., relief for the class) and any other rule would give the defendant the practical power to make the denial of class certification questions unreviewable. Since adversity is in fact retained, and this set of facts fits within a "narrow class of cases" where a contrary rule would lead to the "reality" that "otherwise the issue would evade review," I think our precedents provide for the maintenance of this action. Sosna, supra, 419 U.S., at 402, n. 11, 95 S.Ct., at 559, n. 11; Gerstein, supra. Accordingly, I join in the opinion of the Court in this case and in Mr. Justice POWELL's dissent in Geraghty. 34 Mr. Justice STEVENS, concurring. 35 In his dissenting opinion Mr. Justice POWELL states that, because the District Court erroneously refused to certify the class and because no member of the class attempted to intervene, the respondents "are the only plaintiffs arguably present in court." Post, at 346. This position is apparently based on the notion that, unless class members are present for all purposes (and thus may be liable for costs, bound by the judgment, etc.), they cannot be considered "present" for any purpose. I respectfully disagree. In my opinion, when a proper class-action complaint is filed, the absent members of the class should be considered parties to the case or controversy at least for the limited purpose of the court's Art. III jurisdiction. If the district judge fails to certify the class, I believe they remain parties until a final determination has been made that the action may not be maintained as a class action. Thus, the continued viability of the case or controversy, as those words are used in Art. III, does not depend on the district judge's initial answer to the certification question; rather, it depends on the plaintiffs' right to have a class certified.1 36 Accordingly, even if the named plaintiff's personal stake in the lawsuit is effectively eliminated,2 no question of mootness arises simply because the remaining adversary parties are unnamed.3 Rather, the issue which arises is whether the named plaintiff continues to be a proper class representative for the purpose of appealing the adverse class determination. Cf. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403-406, 97 S.Ct. 1891, 1896-1898, 52 L.Ed.2d 453; United States Parole Comm'n v. Geraghty, 445 U.S. 388, 407, 100 S.Ct. 1202, 1214, 63 L.Ed.2d 479. In my judgment, in this case, as in Geraghty, the named plaintiffs clearly remained appropriate representatives of the class at least for that limited purpose.4 37 I therefore join the opinion of the Court. 38 Mr. Justice BLACKMUN, concurring in the judgment. 39 I concur in the judgment because, under United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479, respondents' appeal of the order denying class certification is not moot. I agree with the Court that the ruling on a class certification motion stands as a litigated issue which does not become moot just because the named plaintiff's suit on the merits is mooted. I would not limit appealability of this procedural motion, however, to situations where there is a possibility that the named plaintiff will be able to recover attorney's fees from either the defendant or the fund awarded to the class. 40 Mr. Justice POWELL, with whom Mr. Justice STEWART joins, dissenting. 41 Respondents are two credit card holders who claim that petitioner charged them usurious interest in violation of the National Bank Act and Mississippi law.1 They filed this action late in 1971 to recover those charges plus a penalty equal to the same amount, for individual totals of $683.30 and $322.70. App. 59. Respondents also sought relief on behalf of a class alleged to include 90,000 persons with claims aggregating $12 million. After four years of litigation, the District Court denied respondents' motion for class certification. Seven months later, petitioner tendered to respondents the full amount of their individual claims plus legal interest and court costs. Over respondents' objection, the District Court entered final judgment in their favor. Petitioner then deposited the full amount due with the Clerk of the Court. 42 No one disputes that the petitioner has tendered everything that respondents could have recovered from it in this action. Nevertheless, the Court of Appeals for the Fifth Circuit rejected petitioner's suggestion of mootness and reversed the denial of class certification. This Court affirms the judgment of the Court of Appeals after finding that respondents retain a personal stake in sharing the expense of litigation with members of the putative class. Ante, at 334, n. 6, 336. This speculative interest simply will not sustain the jurisdiction of an Art. III court under established and controlling precedents. Accordingly, I dissent. 43 * Although there are differences, this case is similar to United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479, in one important respect: both require us to decide whether putative class representatives may appeal the denial of class certification when they can derive no benefit whatever from the relief sought in the action. Here, as in Geraghty, the District Court refused to certify a class. In this case, however, the Court recognizes established Art. III doctrine. It states that the "right . . . to employ Rule 23" is a "procedural right only, ancillary to the litigation of substantive claims." Ante, at 332. It also agrees that a federal court "retains no jurisdiction over the controversy" when the parties' "substantive claims become moot in the Art. III sense." Ibid. Moreover, the Court acknowledges the familiar principle that a party who has no personal stake in the outcome of an action presents no case or controversy cognizable in a federal court of appeals. Ante, at 334, 336. These are indeed the dispositive principles. My disagreement is with the way in which the Court applies them in this case. In my view, these principles unambiguously require a finding of mootness. A. 44 Since no class has been certified and no one has sought to intervene, respondents are the only plaintiffs arguably present in court. Yet respondents have no continuing interest in the injuries alleged in their complaint. They sought only damages; those damages have been tendered in full.2 Respondents make no claim that success on the certification motion would entitle them to additional relief of any kind from the petitioner.3 Their personal claims to relief have been abandoned so completely that no appeal was taken in their own names. The notice of appeal filed with the District Court recites that respondents appeal only "on behalf of all others similarly situated. . . . " App. 63. 45 This in itself is compelling evidence that respondents have no interest in the "individual and private case or controversy" relied on by the Court today. Ante, at 332. But even without such evidence, this and other courts routinely have held that a tender of full relief remedies a plaintiff's injuries and eliminates his stake in the outcome. California v. San Pablo & Tulare R. Co., 149 U.S. 308, 313-314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893); Drs. Hill & Thomas Co. v. United States, 392 F.2d 204 (CA6 1968) (per curiam ); Lamb v. Commissioner, 390 F.2d 157 (CA2 1968) (per curiam ); A. A. Allen Revivals, Inc. v. Campbell, 353 F.2d 89 (CA5 1965) (per curiam ). It is the tender itself that moots the case whether or not a judgment is entered. Ibid. Thus, the law is clear that a federal court is powerless to review the abstract questions remaining in a case when the plaintiff has refused to accept a proffered settlement that fully satisfies his claims. 46 I know of no authority remotely suggesting that the result should differ because the District Court has entered a judgment in favor of respondents instead of dismissing their lawsuit as moot.4 It is certainly true, as the Court observes, that the entry of judgment in favor of a party does not in itself moot his case. Ante at 332-333. There never has been any doubt that a party may appeal those aspects of a generally favorable judgment that affect him adversely. See 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3902 (1976); 9 J. Moore, Federal Practice ¶ 203.06 (2d ed. 1975). But the requirement of adverse effect is more than a rule "of federal appellate practice." Ante, at 333. As we have held repeatedly, and as the Court concedes, ante, at 334, 336, Art. III itself requires a live controversy in which a personal stake is at issue "throughout the entirety of the litigation." Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). See, e. g., Preiser v. Newkirk, 422 U.S. 395, 401-401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). 47 It is this constitutional limitation, and not any rule of practice, that has impelled federal courts uniformly to require a showing of continuing adverse effect in order to confer "standing to appeal." Barry v. District of Columbia Bd. of Elections, 188 U.S.App.D.C. 432, 433, 580 F.2d 695, 696 (1978); 15 Wright, Miller, & Cooper, supra, § 3902; see Altvater v. Freeman, 319 U.S. 359, 63 S.Ct. 1115, 87 L.Ed. 1450 (1943); Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 59 S.Ct. 860, 83 L.Ed. 1263 (1939); Kapp v. National Football League, 586 F.2d 644, 650 (CA9 1978); Cover v. Schwartz, 133 F.2d 541 (1942), cert. denied, 319 U.S. 748, 62 S.Ct. 1158, 87 L.Ed. 1703 (1943).5 As these cases show, the requirements of Art. III are not affected by the "factual context" in which a suggestion of mootness arises. See ante, at 332. Whatever the context, Art. III asks but a single question: Is there a continuing controversy between adverse parties who retain the requisite stake in the outcome of the action? 48 Electrical Fittings Corp. v. Thomas & Betts Co, supra, is the case primarily relied upon by the Court. It provides little or no support for today's ruling. In Electrical Fittings, a limited appeal was allowed because the petitioner himself was prejudiced by the inclusion of an unnecessary and adverse finding in a generally favorable decree. See ante, at 337. Here, the existence of the District Court's order denying certification has no effect whatever on the respondents. Thus, the personal stake that justified the Electrical Fittings appeal is not present in this case. Absent such a stake, it is simply irrelevant that "policy considerations" sometimes may favor an appeal from "a procedural ruling, collateral to the merits of a litigation." Nor is it significant that the ruling "stands as an adjudication of one of the issues litigated." Ante, at 335, 336. Collateral rulings—like other rulings—may be appealed only when the requirements of Art. III are satisfied. B 49 After recognizing that the right to appeal is subject to the "jurisdictional limitations of Art. III," the Court agrees that only a "party [who] retains a stake in the appeal [can satisfy] the requirements of Art. III." Ante, at 334; see Ante, at 336. The Court also agrees that respondents have no remaining stake in "the merits of the substantive controversy." Ibid. Nevertheless, it holds that respondents retain a personal stake in this appeal because they "desire to shift to successful class litigants a portion of those fees and expenses that have been incurred in this litigation and for which they assert a continuing obligation." Ante, at 334, n. 6; see ante, at 336.6 This conclusion is neither legally sound nor supported by the record. 50 The Court fails to identify a single item of expense, chargeable to the petitioner, that was incurred by respondents before the petitioner's tender. Similarly, respondents have been conspicuously vague in identifying the "fees and expenses" relied upon as supplying the adverse interest essential to a live controversy.7 The only expense mentioned by respondents, apart from court costs included in the petitioner's tender, is not a present obligation at all. It is an offer to provide security for costs in the event a class ultimately is certified. Brief for Respondents 33; App. 78. Nor does the attorney's fee arrangement in this case create any obligation, present or future, that can be affected by the certification of a class. Respondents' complaint identifies the fee to be paid, subject to court approval, as "twenty-five per cent (25%)" of the amount of the final judgment. Id., at 14, 16.8 No arrangement other than this customary type contingent fee is identified in the record or the briefs. Yet, no one has explained how respondents' obligation to pay 25% of their recovery to counsel could be reduced if a class is certified and its members become similarly obligated to pay 25% of their recovery. Thus, the asserted interest in "spreading [of] attorney's fees and expenses"9 relates to no present obligation. It is at most an expectation of the respondents' and particularly of their counsel—that certain fees and expenses may become payable in the event a class is certified. That expectation is wholly irrelevant to the existence of a present controversy between petitioner and respondents. 51 The Court's reliance on unidentified fees and expenses cannot be reconciled with the repeated admonition that "unadorned speculation will not suffice to invoke the federal judicial power." E. g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 44, 96 S.Ct. 1917, 1927, 48 L.Ed.2d 450 (1976). Such speculation is particularly inappropriate in this case, since neither the Court nor the respondents have suggested that the petitioner is or ever will be liable for the fees or expenses relied upon. Indeed, the American Rule would bar an award of attorney's fees against this petitioner. Thus, respondents' "injury"—if any exists—is not one that "fairly can be traced" to the petitioner. Id., at 41-42, 96 S.Ct., at 1925-1926; see Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979).10 Whatever may be the basis for the respondents' asserted desire to share fees and expenses with unnamed members of a class, the petitioner is merely a bystander. "[F]ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). This elementary principle should dispose of the case. C 52 Since respondents have no continuing personal stake in the outcome of this action, Art. III and the precedents of this Court require that the case be dismissed as moot. E. g., Ashcroft v. Mattis, 431 U.S. 171, 172-173, 97 S.Ct. 1739, 1740, 52 L.Ed.2d 219 (1977) (per curiam); Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam); Preiser v. Newkirk, 422 U.S., at 401-404, 95 S.Ct., at 2334-2335; Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); DeFunis v. Odegaard, 416 U.S. 312, 316-320, 94 S.Ct. 1704, 1705-1707, 40 L.Ed.2d 164 (1974) (per curiam); North Carolina v. Rice, supra, 404 U.S., at 246, 92 S.Ct., at 404; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972).11 53 Respondents do not suggest that their claims are "capable of repetition, yet evading review." Cf. Gerstein v. Pugh, 420 U.S. 103, 110-111, n. 11, 95 S.Ct. 854, 861 n. 11, 43 L.Ed.2d 54 (1975).12 And not a single one of the alleged 90,000 class members has sought to intervene in the nine years since this action was filed. Cf. United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). Nor has anyone challenged the allegedly usurious charges by informal complaint or protest. Tr. of Oral Arg. 4. Even after certification was denied, the action lay dormant during the seven months in which respondents sought to take an interlocutory appeal, without provoking a response from anyone who previously may have thought that the class action would protect his rights. Apart from the persistence of the lawyers, this has been a noncase since the petitioner tendered full satisfaction of the respondents' individual claims. To be sure, respondents' counsel may have the same interest in an enlarged recovery that is inherent in any contingent fee arrangement. But I know of no decision by any court that holds that a lawyer's interest in a larger fee, to be paid by third persons not present in court, creates the personal stake in the outcome required by Art. III. II 54 Despite the absence of an Art. III controversy, the Court directs a remand in which this federal action will be litigated by lawyers whose only "clients" are unidentified class members who have shown no desire to be represented by anyone.13 The Court appears to endorse this form of litigation for reasons of policy and practice. It is said to be an effective "response to the existence of injuries unremedied by the regulatory action of government." Ante, at 339. I am not aware that such a consideration ever before has influenced this Court in determining whether the Constitution confers jurisdiction on the federal courts. In any event, the consequences of a finding of mootness are not likely to be as restrictive as the Court seems to fear. And the Court fails to recognize that allowing this action to proceed without an interested plaintiff will itself generate practical difficulties of some magnitude. 55 * A finding of mootness would have repercussions primarily in two situations. The first involves a named plaintiff who fails to obtain class certification and then pursues his case to a successful, litigated judgment. I believe that a subsequent attempt by that plaintiff to appeal the denial of certification generally would be barred by Art. III. But the consequences of applying settled rules of mootness in that situation would not be unjust. If injunctive or declaratory relief were granted, the absent members of the putative class would have obtained by force of stare decisis or the decree itself most of the benefits of actual class membership. If, on the other hand, damages were awarded and an appeal permitted, reversal of the certification ruling would enable putative class members to take advantage of a favorable judgment on the issue of liability without assuming the risk of being bound by an unfavorable judgment. Thus, the Court's decision to allow appeals in this situation will reinstate the "one-way intervention" that the 1966 amendments to Rule 23 were intended to eliminate.14 56 Perhaps more commonly, the mootness question will arise when the defendant attempts to force a settlement before judgment, as petitioner did in this case. A defendant certainly will have a substantial incentive to use this tactic in some cases. The Court argues that the result will be to deny compensation to putative class members and jeopardize the enforcement of certain legal rights by " 'private attorney[s] general.' " Ante, at 338. The practical argument is not without force. But predicating a judgment on these concerns amounts to judicial policymaking with respect to the adequacy of compensation and enforcement available for particular substantive claims. Such a judgment ordinarily is best left to Congress. At the very least, the result should be consistent with the substantive law giving rise to the claim. Today, however, the Court never pauses to consider the law of usury. Since Mississippi law condemns the aggregation of usury claims,15 the Court's concern for compensation of putative class members in this case is at best misplaced and at worst inconsistent with the command of the Rules Enabling Act.16 57 The Court's concern for putative class members would be more telling in a more appropriate case. A pattern of forced settlement could indeed waste judicial resources on the litigation of successive suits by members of the putative class. I do not doubt that the consequent problems of judicial administration would be real. But these problems can and should be addressed by measures short of undercutting the law of mootness, as the Court seems to have done today. The first step should be the authorization of interlocutory appeals from the denial of class certification in appropriate circumstances.17 District courts already are empowered by 28 U.S.C. § 1292(b) to certify such appeals when they involve certain controlling questions of law. In many cases, a class-action defendant undoubtedly would forgo the opportunity to settle with an individual plaintiff in order to obtain an immediate and final determination of the class certification question on appeal. 58 Where a defendant does attempt to moot a class action by forced settlement, the district court is not powerless. In at least some circumstances, it may require that putative class members receive some sort of notice and an opportunity to intervene within the appeal period. Rule 23(d)(2). The availability of such measures could be a significant deterrent to the deliberate mooting of class actions. Indeed, district court management of the problem by measures tailored to the case at hand may well be preferable to the Court's open-ended approval of appeals in all circumstances. To the extent interlocutory appeals are unavailable or managerial powers are lacking, it is for Congress—not this Court—to correct the deficiency.18 B 59 Since a court is limited to the decision of the case before it, judicially fashioned "solutions" to legislative problems often are attended by unfortunate practical consequences of their own. Today's holding is no exception. On remand, respondents will serve as "quasi-class representatives" solely for the purpose of obtaining class certification. Since they can gain nothing more from the action, their participation can be intended only to benefit counsel and the members of a putative class who have indicated no interest in the claims asserted in this case. Respondents serve on their own motion—if indeed they serve at all.19 Since no court has certified the class, there has been no considered determination that respondents will fairly and adequately represent its members. Nothing in Rule 23 authorizes this novel procedure, and the requirements of the Rule are not easily adapted to it. Are respondents members of the class they seek to represent? See East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403-404, 97 S.Ct. 1891, 1896-1897, 52 L.Ed.2d 453 (1977). Are their currently nonexistent claims "typical of the claims . . . of the class" within the meaning of Rule 23(a)(3)?20 60 The Court's holding well may prevent future "forced settlements" of class-action litigation. Thus, the difficulties faced by the District Court on remand in this case may not arise again in precisely analogous circumstances. But today's result also authorizes appeals by putative class representatives who have litigated and prevailed on the merits of their individual claims. If the order denying class certification is reversed in that situation, the named plaintiffs on remand will have no more continuing relationship to the putative class than respondents have here. A remand for certification could also lead to "one-way intervention" in direct violation of Rule 23. See supra, at 354, and n. 14. These tensions, arising from the express terms of the Rule, undermine the Court's conclusion that the policies underlying Rule 23 dictate the result reached today. III 61 In sum, the Court's attempted solution to the problem of forced settlements in consumer class actions departs from settled principles of Art. III jurisprudence.21 It unnecessarily creates significant problems in the administration of Rule 23. And it may work a serious injustice in this case.22 I would vacate the judgment of the Court of Appeals and remand with instructions to dismiss the appeal as moot. 1 Respondents' complaint also alleged a cause of action based on the Truth in Lending Act, 15 U.S.C. § 1601 et seq., but that claim was dismissed with prejudice at respondents' request. 2 The District Court found that the requirements of Rule 23(b)(3) were not met because the putative class representatives had failed to establish the predominance of questions of law and fact common to class members, and because a class action was not shown to be a superior method of adjudication due to (1) the availability of traditional procedures for prosecuting individual claims in Mississippi courts; (2) the "horrendous penalty," which could result in "destruction of the bank" if claims were successfully aggregated; (3) the substantive law of Mississippi which views the aggregation of usury claims as undesirable; and (4) the tremendous burden of handling 90,000 claims, particularly if counterclaims were filed. 3 Reversal of the District Court's denial of certification by the Court of Appeals may relate back to the time of the original motion for certification for the purposes of tolling the statute of limitations on the claims of the class members. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). 4 E. g., Winokur v. Bell Federal Savings & Loan Assn., 560 F.2d 271 (CA7 1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978). 5 We note that Rule 23(e) prescribes certain responsibilities of a district court in a case brought as a class action: once a class is certified, a class action may not be "dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." Conceivably, there also may be circumstances, which need not be defined here, where the district court has a responsibility, prior to approval of a settlement and its dismissal of the class action, to provide an opportunity for intervention by a member of the putative class for the purpose of appealing the denial of class certification. Such intervention occurred in United Airlines, Inc. v. McDonald, supra. 6 The dissent construes the notice of appeal as a complete abandonment by respondents of their Art. III personal stake in the appeal. Post, at 346. Such is not the case. Indeed, the appeal was taken by the named plaintiffs, although its only purpose was to secure class certification; throughout this litigation, respondents have asserted as their personal stake in the appeal their desire to shift to successful class litigants a portion of those fees and expenses that have been incurred in this litigation and for which they assert a continuing obligation. See Plaintiffs-Appellants' Brief in Opposition to Motion to Dismiss Appeal and Reply Brief in No. 76-3600 (CA5), pp. 4, 12, 16, 17. 7 In a sense, the petitioner in Electrical Fittings sought review of the District Court's procedural error. The District Court was correct in inquiring fully into the validity of the patent, Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 330, 65 S.Ct. 1143, 1145, 89 L.Ed. 1644 (1945), but was incorrect to adjudge the patent valid after ruling that there had been no infringement. By doing so, the District Court had decided a hypothetical controversy, Altvater v. Freeman, 319 U.S. 359, 363, 63 S.Ct. 1115, 1117, 87 L.Ed. 1450 (1943); yet petitioners could take the appeal to correct this error because there had been an adverse decision on a litigated issue, they continued to assert an interest in the outcome of that issue, and for policy reasons this Court considered the procedural question of sufficient importance to allow an appeal. 8 In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), we held that the class certification ruling did not fall within that narrow category of circumstances where appeal was allowed prior to final judgment as a matter of right under 28 U.S.C. § 1291. However, our ruling in Livesay was not intended to preclude motions under 28 U.S.C. § 1292(b) seeking discretionary interlocutory appeal for review of the certification ruling. See 437 U.S., at 474-475, 98 S.Ct., at 2461. In some cases such an appeal would promise substantial savings of time and resources or for other reasons should be viewed hospitably. 9 A significant benefit to claimants who choose to litigate their individual claims in a class-action context is the prospect of reducing their costs of litigation, particularly attorney's fees, by allocating such costs among all members of the class who benefit from any recovery. Typically, the attorney's fees of a named plaintiff proceeding without reliance on Rule 23 could exceed the value of the individual judgment in favor of any one plaintiff. Here the damages claimed by the two named plaintiffs totaled $1,006.00. Such plaintiffs would be unlikely to obtain legal redress at an acceptable cost, unless counsel were motivated by the fee-spreading incentive and proceeded on a contingent-fee basis. This, of course, is a central concept of Rule 23. 10 This case does not raise any question as to the propriety of contingent-fee agreements. 11 See A. Miller, An Overview of Federal Class Actions: Past, Present, and Future 12 (Federal Judicial Center 1977). 12 Difficult questions arise as to what, if any, are the named plaintiffs' responsibilities to the putative class prior to certification; this case does not require us to reach these questions. 1 There is general agreement that, if a class has been properly certified, the case does not become moot simply because the class representative's individual interest in the merits of the litigation has expired. In such a case the absent class members' continued stake in the controversy is sufficient to maintain its viability under Art. III. In a case in which certification has been denied by the district court, however, a court of appeals cannot determine whether the members of the class continue to have a stake in the outcome until it has determined whether the action can properly be maintained as a class action. If it is not a proper class action, then the entire case is moot. If, on the other hand, the district court's refusal to certify the class was erroneous, I believe there remains a live controversy which the courts have jurisdiction to resolve under Art. III. I recognize that there is tension between the approach I have suggested and the Court's sua sponte decision in Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74. See also Pasadena City Bd. of Education v. Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 2702, 49 L.Ed.2d 599. As Mr. Justice BLACKMUN points out in United States Parole Comm'n v. Geraghty, 445 U.S. 388, 400, n. 7, 100 S.Ct. 1202, 1210, n. 7, 63 L.Ed.2d 479, that case is distinguishable from this case because it involved an attempt to litigate the merits of an appeal on behalf of an improperly certified class. I agree that the Court could not properly consider the merits until the threshold question of whether a class should have been certified was resolved. However, I disagree with the Court's conclusion that the entire action had to be dismissed as moot. In my view, the absent class members remained sufficiently present so that a remand on the class issue would have been a more appropriate resolution. Just as absent class members whose status has not been fully adjudicated are not "present" for purposes of litigating the merits of the case, I would not find them present for purposes of sharing costs or suffering an adverse judgment. If a class were ultimately certified, the class members would, of course, retain the right to opt out. 2 I agree with the Court's determination in this case and in Geraghty that the respective named plaintiffs continue to have a sufficient personal stake in the outcome to satisfy Art. III requirements. See ante. at 340; Geraghty, 445 U.S., at 404, 100 S.Ct., at 1212. 3 The status of unnamed members of an uncertified class has always been difficult to define accurately. Such persons have been described by this Court as "parties in interest," see Smith v. Swormstedt, 16 How. 288, 303, 14 L.Ed. 942; as "interested parties," see Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366, 41 S.Ct. 338, 342, 65 L.Ed. 673; or as "absent parties," see Hansberry v. Lee, 311 U.S. 32, 42-45, 61 S.Ct. 115, 118-120, 85 L.Ed. 22. There is nothing novel in my suggestion that such "absent parties" may be regarded as parties for the limited purpose of analyzing the status of the case or controversy before a certification order has been entered. Indeed, since the concept of "absent parties" was developed long before anyone conceived of certification orders, I find it difficult to understand why the existence of a case or controversy in a constitutional sense should depend on compliance with a procedural requirement that was first created in 1966. 4 My view of the jurisdictional issue would not necessarily enlarge the fiduciary responsibilities of the class representative as Mr. Justice Powell suggests, see post, at 358-359 n. 21. In any event, I do not share the concern expressed in his opinion about the personal liability of a class representative for costs and attorney's fees if the case is ultimately lost. Anyone who voluntarily engages in combat—whether in the courtroom or elsewhere—must recognize that some of his own blood may be spilled. 1 Jurisdiction was premised on the National Bank Act, 12 U.S.C. §§ 85, 86, which adopts the interest limits set by state law, and on 28 U.S.C. § 1355. 2 Although respondents also asked for attorney's fees, their complaint shows that fees were to be granted only from the damages ultimately awarded to them or the class. App. 13-14. There is no possibility of prospective relief because the Mississippi usury statute was amended in 1974 to authorize, inter alia, the charges at issue in this case. 1974 Miss.Gen.Laws, ch. 564, § 7; see Miss.Code Ann. § 75-17-1(6) (Supp.1979). 3 Neither the Court nor the respondents have asserted that the petitioner's tender fails to include all costs and fees for which it could be held liable. See Part II-B, infra. 4 The "statutory right" to appeal, ante, at 333, itself cannot supply a personal stake in the outcome, for Congress cannot abrogate Art. III limitations on the jurisdiction of the federal courts. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). 5 United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), and Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), are not to the contrary. Incidental dictum in both cases stated that the denial of class certification is subject to appellate review after final judgment at the behest of the named plaintiffs. Neither case discussed mootness, and neither analyzed the proposition in any way. Indeed, the only authority cited in Coopers & Lybrand was United Airlines, see 437 U.S., at 469, 98 S.Ct., at 2458, and the only authority cited in United Airlines was a concession made by the defendant and a list of cases from the Courts of Appeals, not one of which dealt with a suggestion of mootness in an analogous situation, see 432 U.S., at 393, and n. 14, 97 S.Ct., at 2469, and n. 14. Such statements, casually enunciated without a word of explanation in opinions dealing with unrelated legal questions, are not controlling or even persuasive when they are shown on further reflection to have been inconsistent with settled law. As the Court agrees today, neither case creates an exception to the fundamental rule that "[f]ederal appellate jurisdiction is limited by the appellant's personal stake in the appeal." Ante, at 336. 6 The Court also mentions that "[t]he use of the class-action procedure for litigation of individual claims may offer substantial advantages for named plaintiffs. . . . " Ante, at 338. But any such advantages cannot accrue to these respondents, who will not be litigating their own claims on remand. Indeed, the Court refers to respondents in this context only to point out that their total damages were so small that they "would be unlikely to obtain legal redress at an acceptable cost" if they could not do so by means of a class action. Ante, at 338, n. 9. We may assume that respondents had some interest in the class-action procedure as a means of interesting their lawyers in the case or obtaining a satisfactory settlement. This may be an interest properly furthered by Rule 23, but once respondents obtained both access to court and full individual relief that interest disappeared. 7 Perhaps the strongest of respondents' statements is: "Of course, the interest of the [respondents] in assertion of the right to proceed on behalf of the class includes such matters as the prospect for spreading attorney's fees and expenses among more claimants and thus reducing the percentage that would otherwise be payable by them." Plaintiffs-Appellants' Brief in Opposition to Motion to Dismiss Appeal and Reply Brief, filed in Roper v. Consurve, Inc., No. 76-3600 (CA5, Jan. 10, 1977). 8 Respondents' "Demand for Judgment" asks the court to award the "[c]ost of this action as well as attorney fees in the amount of 25% as hereinabove alleged, or such other amount as may be deemed fit and proper by the Court." App. 16. The request for fees was clarified in Paragraph VI of the amended complaint, which reads as follows: "Plaintiff alleges that the Clerk of this Court be designated custodian of the funds and judgment to be paid Plaintiff and other persons similarly situated, by Defendants and the Clerk deposit said funds in a suitable depository and, upon proper order of this Court, disburse said funds after deduction of necessary expenses and attorney fees to Plaintiff's attorneys herein of twenty-five per cent (25%) of the amount so paid, the same being reasonable by all standards, including that alleged and utilized by Defendants in suing certain members in of [sic ] the class in State Courts for unpaid accounts." Id., at 13-14. 9 See n. 7, supra. 10 Far-reaching consequences could flow from a rule that fees recoverable from putative class members may be "traced" to the class defendant for purposes of the case-or-controversy requirement. At the least, this rule would support a claim that a person who has accepted full settlement of his individual claim is entitled to file suit on behalf of an unrecompensed class. Apparently, the putative plaintiff need only "asser[t]," ante, at 334, n. 6, that fees incurred in anticipation of the litigation ultimately might be shared with a prevailing class. 11 These cases are discussed more fully in United States Parole Comm'n v. Geraghty, 445 U.S. 388, 410-413, 417-419, 100 S.Ct. 1202, 1215-1217, 1219-1220, 63 L.Ed.2d 479 (POWELL, J., dissenting). 12 If a class-action defendant were shown to have embarked on a course of conduct designed to insulate the class certification issue from appellate review in order to avoid classwide liability, a court in proper circumstances might find the Gerstein test satisfied and the case not moot. See Susman v. Lincoln American Corp., 587 F.2d 866 (CA7 1978); 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3533, p. 208 (Cum.Supp.1980); Comment, Continuation and Representation of Class Actions Following Dismissal of the Class Representative, 1974 Duke L.J. 573, 599-600. 13 I do not suggest that counsel acted improperly in pursuing this case. Since they have prevailed both in this Court and in the Court of Appeals, the responsibility for allowing client-less litigation falls on the federal courts. 14 See Comment, Immediate Appealability of Orders Denying Class Certification, 40 Ohio St.L.J. 441, 470-471 (1979). In actions brought under Rule 23(b)(3), a class member must decide at the time of certification whether to "opt out" of the action under Rule 23(c)(2). This provision was designed to bring an end to the "spurious" class action in which class members were permitted to intervene after a decision on the merits in order to secure the benefits of that decision. Notes of the Advisory Committee on 1966 Amendments to Rule 23, 28 U.S.C.App., p. 430. 15 Liddell v. Litton Systems, Inc., Miss., 300 So.2d 455 (1974) (rejecting borrower's class action); Fry v. Layton, 191 Miss. 17, 2 So.2d 561 (1941). Petitioner is a national bank, and its alleged failure to comply with Mississippi's interest limits would violate the National Bank Act. 12 U.S.C. § 85. But I do not understand that the National Bank Act displaces state policy disfavoring the aggregation of usury claims. A primary purpose of that Act is to protect national banks from discriminatory treatment or undue penalties that may be imposed by state law. See 12 U.S.C. § 86. 16 The Act provides that rules of procedure promulgated by this Court "shall not . . . enlarge or modify any substantive right." 28 U.S.C. § 2072. See American Pipe & Construction Co. v. Utah, 414 U.S. 538, 557-558, 94 S.Ct. 756, 768-769, 38 L.Ed.2d 713 (1974); Developments in the Law—Class Actions, 89 Harv.L.Rev. 1318, 1358-1359 (1976). See generally Landers, Of Legalized Blackmail and Legalized Theft: Consumer Class Actions and the Substance-Procedure Dilemma, 47 S.Cal.L.Rev. 842 (1974). 17 In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), this Court held that the denial of class certification is not a "final decision" appealable as of right under 28 U.S.C. § 1291. We relied in that case on the dangers of "indiscriminate" interlocutory review. 437 U.S., at 474, 98 S.Ct., at 2461. Although Coopers & Lybrand now prevents review in cases in which it would be desirable, Congress may remedy the problem by appropriate legislation. 18 Congress currently has before it a bill that attempts to remedy the difficulties infecting this troubled area. H.R.5103, 96th Cong., 1st Sess. (1979). The bill, supported by the Department of Justice, proposes to bypass the Rules Enabling Act problem, see n. 16, supra, and to eliminate some of the problems of claims too small to justify individual lawsuits, by creating a new federal right of action for damages. The bill provides for the enforcement of this right in some instances through actions brought in the name of the United States. The bill also authorizes interlocutory appeals from the grant or denial of the ruling that will replace class certification under the proposed procedures. 19 As noted supra, at 346, respondents took no appeal in their own names. One would think that this candid disclaimer of personal interest would destroy the foundation upon which the Court predicates Art. III jurisdiction. Ante, at 336; see p. 349, supra. 20 The District Court properly may conclude on remand that respondents, for these or other reasons, cannot adequately represent the class. 21 Mr. Justice STEVENS states in his concurring opinion that all persons alleged to be members of a putative class "should be considered parties to the case or controversy at least for the limited purpose" of Art. III, and that they "remain parties until a final determination has been made that the action may not be maintained as a class action." Ante, at 342. This novel view apparently derives from early cases in which the Court referred to class members who would be bound by a judgment as "absent parties," Hansberry v. Lee, 311 U.S. 32, 42, 61 S.Ct. 115, 118, 85 L.Ed. 22 (1940), or "parties in interest," Smith v. Swormstedt, 16 How. 288, 303, 14 L.Ed. 942 (1854). Ante, at 343, n. 3. But these cases were decided before certification was established as the method by which a class achieves judicial recognition. Under Rule 23, the members of a putative class will not be bound by a judgment unless a proper certification order is entered. That they may be "interested parties" before that time does not make them parties to the litigation in any sense, as this Court has recognized. In Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), the Court held that an oral certification order was insufficient to identify the interests of absent class members for Art. III purposes. The result hardly could be different when the class has not been identified at all. See also Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8, 98 S.Ct. 1554, 1559, 56 L.Ed.2d 30 (1978); Baxter v. Palmigiano, 425 U.S. 308, 310-311, n. 1, 96 S.Ct. 1551, 1554, n. 1, 47 L.Ed.2d 810 (1976); Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); Pasadena City Bd. of Education v. Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 2702, 49 L.Ed.2d 599 (1976). Mr. Justice STEVENS indicates that unnamed members of an uncertified class may be "present" as parties, for some purposes and not for others. No authority is cited for such selective "presence" in an action. Nor is any explanation offered as to how a court is to determine when these unidentified "parties" are present. If their presence is to be limited to the satisfaction of the Art. III case-or-controversy requirement, then the rule of party status would have no content apart from Art. III and could only be described as a legal fiction. If on the other hand, the proposed rule is to apply outside the Art. III context, it may have troublesome and far-reaching implications that could prejudice the bringing of class actions. Presumably, a purpose of the rule of party status would be to assure that satisfaction of the claims of named parties would not terminate the litigation. Nor could the rights of unnamed parties be extinguished by the failure of the named parties to appeal. Thus, if the rule proposed by Mr. Justice STEVENS is to accomplish its purpose, I suppose that a fiduciary duty must be imposed upon named parties to continue the litigation where—as here—the unnamed parties remain unidentified and fail to intervene. As fiduciaries, would the named parties be required not only to continue to litigate, but also to assume personal responsibility for costs and attorney's fees if the case ultimately is lost? Would responsible litigants be willing to file class actions if they thereby assumed such long-term fiduciary obligations? These and like questions are substantial. They are not resolved by Rule 23. I believe they merit careful study by Congress before this Court—perhaps unwittingly—creates a major category of clientless litigation unique in our system. 22 The Court's resurrection of this dead controversy may result in irreparable injury to innocent parties, as well as to the petitioner bank. When the District Court denied certification on September 29, 1975, it assigned as one of its reasons the possible "destruction of the [petitioner] bank" by damages then alleged to total $12 million and now potentially augmented by the accrual of interest. App. 47; see ante, at 329, n. 2. The possible destruction of the bank is irrelevant to the jurisdictional issue, but serious indeed to depositors, stockholders, and the community served. It is said that this is necessary to redress injuries possibly suffered by members of the putative class. Yet, no such person has come forward in the nearly nine years that have passed since this action was filed. Indeed, the challenged conduct was authorized by statute almost six years ago. As the District Court may be called upon to determine whether the equitable doctrine of "relation back" permits it to toll the statute of limitations on remand, ante, at 330, n. 3, it will hardly be inappropriate for that court to consider the equities on both sides. In the circumstances presented, the District Court may well see no reason to exercise its equitable discretion in favor of putative class members who have slept on their rights these many years.

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445 U.S. 360 100 S.Ct. 1185 63 L.Ed.2d 454 UNITED STATES, Petitioner,v.Edgar H. GILLOCK. No. 78-1455. Argued Dec. 4, 1979. Decided March 19, 1980. Syllabus A federal indictment charged respondent, then a Tennessee state senator, with accepting money as fees for using his public office to block the extradition of a defendant from Tennessee to Illinois, and for agreeing to introduce state legislation which would enable four persons to obtain master electricians' licenses they had been unable to obtain by way of existing examination processes. The District Court granted respondent's motion to suppress all evidence relating to his legislative activities, holding that as a state senator respondent was entitled to a judicially created evidentiary privilege. The District Court relied on Rule 501 of the Federal Rules of Evidence, which provides in relevant part that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." The Court of Appeals affirmed the District Court's recognition of a privilege and its suppression of certain items of evidence; it held that other items of evidence were insufficiently related to the legislative process to be protected by the privilege. Held : In a federal criminal prosecution against a state legislator there is no legislative privilege barring the introduction of evidence of the legislative acts of the legislator. Pp. 366-374. (a) Rule 501's language and legislative history do not support respondent's arguments that a speech-or-debate type privilege for state legislators in federal criminal cases is an established part of the federal common law and is therefore applicable through the Rule, or that such a privilege is compelled by principles of federalism. Rule 501 requires the application of federal privilege law in criminal cases brought in federal court, and thus the fact that there is an evidentiary privilege under the Tennessee Constitution which respondent could assert in a state criminal prosecution does not compel an analogous privilege in a federal prosecution. Pp. 366-368. (b) The historical antecedents and policy considerations which inspired the Speech or Debate Clause of the Federal Constitution do not require recognition of a comparable evidentiary privilege for state legislators in federal prosecutions. The first rationale underlying the Speech or Debate Clause, resting solely on the separation-of-powers doctrine, gives no support to the grant of a privilege to state legislators in federal prosecutions. As to the second rationale underlying the Speech or Debate Clause, that is, the need to insure legislative independence, this Court's decisions on immunity of state officials from suit have drawn the line at civil actions. Cf., e. g., Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019; O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674. Where important federal interests are at stake, as in the enforcement of federal criminal statutes, principles of comity must yield. Recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes with only speculative benefits to the state legislative process. Pp. 368-373. (c) Congress has not chosen either to provide that a state legislator prosecuted under federal law should be accorded the same evidentiary privileges as a Member of Congress, or to direct federal courts to apply to a state legislator the same evidentiary privileges available in a prosecution of a similar charge in the state courts. In the absence of a constitutional limitation on Congress' power to make state officials, like all other persons, subject to federal criminal sanctions, there is no basis in these circumstances for a judicially created limitation that excludes proof of the relevant facts. P. 374. 6 Cir., 587 F.2d 284, reversed. Sol. Gen. Wade H. McCree, Jr., Washington, D. C., for petitioner. James V. Doramus, Nashville, Tenn., for respondent. Mr. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to resolve a conflict in the Circuits over whether the federal courts in a federal criminal prosecution should recognize a legislative privilege barring the introduction of evidence of the legislative acts of a state legislator charged with taking bribes or otherwise obtaining money unlawfully through exploitation of his official position.1 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1043 (1979). 2 * Respondent Edgar H. Gillock was indicted on August 12, 1976, in the Western District of Tennessee on five counts of obtaining money under color of official right in violation of 18 U.S.C. § 1951, one count of using an interstate facility to distribute a bribe in violation of 18 U.S.C. § 1952,2 and one count of participating in an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962. The indictment charged Gillock, then a Tennessee state senator and practicing attorney, with accepting money as a fee for using his public office to block the extradition of a defendant from Tennessee to Illinois, and for agreeing to introduce in the State General Assembly legislation which would enable four persons to obtain master electricians' licenses they had been unable to obtain by way of existing examination processes. 3 Before trial, Gillock moved to suppress all evidence relating to his legislative activities. The District Court granted his motion, holding that as a state senator, Gillock had an evidentiary privilege cognizable under Rule 501 of the Federal Rules of Evidence. This privilege, deemed by the District Court to be equivalent to that granted Members of both Houses of Congress under the Speech or Debate Clause, Art. I, § 6, cl. 1, was limited to prohibiting the introduction of evidence of Gillock's legislative acts and his underlying motivations. The court stated that the privilege is necessary "to protect the integrity of the [state's] legislative process by insuring the independence of individual legislators" and "to preserve the constitutional relation between our federal and state governments in our federal system." 4 The Government appealed the pretrial suppression order to the United States Court of Appeals for the Sixth Circuit, see 18 U.S.C. § 3731, which vacated the order and remanded for additional consideration. 559 F.2d 1222 (1977). The Court of Appeals noted that although the District Court had expressed its willingness to recognize a legislative privilege, it had not applied the principle to particularize items of evidence. 5 On remand, the Government submitted a formal offer of proof and requested a ruling on the applicability of the legislative privilege to 15 specifically described items of evidence.3 The offer first detailed the evidence the Government proposed to introduce at trial in support of the count of the indictment charging Gillock with soliciting money from one Ruth Howard in exchange for using his influence as a state senator to block the extradition of Howard's brother, James Michael Williams. Williams had been arrested in Tennessee in November 1974, and was being held as a fugitive from Illinois. According to the offer of proof, in January 1975 Howard met in Memphis with her brother's attorney, John Hundley, who allegedly told her that he had a "friend" who could help her brother. A meeting between Gillock and Howard was arranged by Hundley, and Gillock agreed to exercise his influence to block the extradition for a fee. 6 The Government declared its intention to prove that on March 6, 1975, Gillock appeared at Williams' extradition hearing. Although he denied that he was attending the hearing either as an attorney or in his capacity as a state senator, Gillock reviewed the extradition papers and questioned the hearing officer about the propriety of extradition on a misdemeanor charge. Later that day, Gillock requested an official opinion from the Tennessee Attorney General concerning "Extradition on a Misdemeanor."4 7 In addition, the Government stated it intended to introduce at trial the transcript of a telephone call Gillock made to Howard on March 25, 1975. During that conversation, Gillock allegedly advised Howard that he had delayed the extradition proceedings, and could have blocked them entirely, by exerting pressure on the extradition hearing officer who had appeared before Gillock's senate judiciary committee on a budgetary matter. To corroborate that conversation, the Government indicated it would prove that on March 19, 1975, Gillock attended a meeting of the senate judiciary committee where the same extradition hearing officer who conducted Williams' extradition hearing presented his department's budget request. 8 Next, the Government recited the evidence it proposed to introduce showing that Gillock used his influence as a member of the Tennessee State Senate to assist four individuals in obtaining master electricians' licenses valid in Shelby County, Tenn. According to the offer of proof, the four contacted Gillock in early 1972. Two weeks later, Gillock advised them that he could get legislation enacted by the General Assembly which would provide for reciprocity in licensing. Under his proposal, a person who received a license in another county could be admitted without a test in Shelby County. The prosecution represented it would offer evidence that Gillock fixed a contingent fee of $5,000 per person, to be refunded if the legislation was not passed. 9 The Government also represented that it would offer evidence that Gillock introduced reciprocity legislation in the senate and that he arranged for the introduction of a similar bill in the house. The Government further proposed to introduce statements made by Gillock on the floor of the senate in support of the bill. After the bill was passed by both branches of the legislature and forwarded to the Governor, several private persons, including union representatives, allegedly met with Gillock and voiced their opposition to the legislation. The Government intended to prove that Gillock replied that he could not financially afford to withdraw the legislation because he had already accepted "fees" for introducing it. Finally, the Government intended to prove that on April 13, 1972, Gillock moved to override the Governor's veto of the legislation, and stated that it would introduce into evidence any and all statements made by Gillock on the floor of the senate in support of his motion to override. 10 Based on this offer of proof, the District Court granted Gillock's renewal motion to exclude evidence of his legislative acts under Rule 501. It ruled inadmissible Gillock's official request for an opinion from the Attorney General regarding extradition and the answer to that request, and Gillock's statements to Howard that he could exert pressure on the extradition hearing officer to block the extradition because the hearing officer had appeared before Gillock's legislative committee. Similarly, the court ruled that all evidence regarding Gillock's introduction and support of the electricians' reciprocal licensing bill, his conversation with the private individuals who opposed the legislation, and the Governor's veto letter would be inadmissible. 11 The Government again appealed the District Court's suppression order. The Court of Appeals by a divided vote held that "the long history and the felt need for protection of legislative speech or debate and the repeated and strong recognition of that history in the cases from the Supreme Court, fully justify our affirming [the District Court] in [its] protection of the privilege in this case." 587 F.2d 284, 290 (6 Cir. 1978). Turning to the scope of the privilege, the court affirmed the suppression of evidence of Gillock's request for a formal opinion from the Attorney General, his participation in the senate judiciary committee, his introduction of the reciprocity legislation, his motion on the floor of the senate to override the Governor's veto, and all the statements he made on the floor of the senate. The other items of evidence were considered to be insufficiently related to the legislative process to be protected by the privilege. II 12 Gillock urges that we construct an evidentiary privilege barring the introduction of evidence of legislative acts in federal criminal prosecutions against state legislators. He argues first that a speech or debate type privilege for state legislators in federal criminal cases is an established part of the federal common law and is therefore applicable through Rule 501.5 Second, he contends that even apart from Rule 501, a legislative speech or debate privilege is compelled by principles of federalism rooted in our constitutional structure. 13 It is clear that were we to recognize an evidentiary privilege similar in scope to the Federal Speech or Debate Clause, much of the evidence at issue here would be inadmissible. Recently, in United States v. Helstoski, 442 U.S. 477, 489, 99 S.Ct. 2432, 2439, 61 L.Ed.2d 12 (1979), we reaffirmed our holding in United States v. Brewster, 408 U.S. 501, 525, 92 S.Ct. 2531, 2544, 33 L.Ed.2d 507 (1972), that with respect to Members of Congress "[t]he Clause protects 'against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.' " Under that standard, evidence of Gillock's participation in the state senate committee hearings and his votes and speeches on the floor would be privileged and hence inadmissible. 14 The language and legislative history of Rule 501 give no aid to Gillock. The Rule provides in relevant part that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."6 Congress substituted the present language of Rule 501 for the draft proposed by the Advisory Committee of the Judicial Conference of the United States to provide the courts with greater flexibility in developing rules of privilege on a case-by-case basis. Under the Judicial Conference proposed rules submitted to Congress, federal courts would have been permitted to apply only nine specifically enumerated privileges, except as otherwise required by the Constitution or provided by Acts of Congress. See Proposed Federal Rules of Evidence 501-513, H.R.Doc. No. 93-46, pp. 9-19 (1973). Neither the Advisory Committee, the Judicial Conference, nor this Court saw fit, however, to provide the privilege sought by Gillock. Although that fact standing alone would not compel the federal courts to refuse to recognize a privilege omitted from the proposal, it does suggest that the claimed privilege was not thought to be either indelibly ensconced in our common law or an imperative of federalism.7 15 Moreover, the House Conference Committee Report on the Federal Rules of Evidence leaves little doubt that Rule 501 requires the application of federal privilege law in criminal cases brought in federal court.8 H.R.Conf.Rep.No.93-1597, p. 7 (1974). Cf. Wolfle v. United States, 291 U.S. 7, 13, 54 S.Ct. 279, 280, 78 L.Ed. 617 (1934) (the admissibility of evidence in criminal trials in the federal courts "is to be controlled by common law principles, not by local statute"); Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933). Thus, the fact that there is an evidentiary privilege under the Tennessee Constitution, Art. II, § 13, which Gillock could assert in a criminal prosecution in state court does not compel an analogous privilege in a federal prosecution. III 16 Gillock argues that the historical antecedents and policy considerations which inspired the Speech or Debate Clause of the Federal Constitution should lead this Court to recognize a comparable evidentiary privilege for state legislators in federal prosecutions. The important history of the Speech or Debate Clause has been related abundantly in opinions of this Court and need not be repeated. See, e. g., United States v. Helstoski, supra; United States v. Brewster, supra; United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). Suffice it to recall that England's experience with monarchs exerting pressure on members of Parliament by using judicial process to make them more responsive to their wishes led the authors of our Constitution to write an explicit legislative privilege into our organic law. In statutes subject to repeal or in judge-made rules of evidence readily changed by Congress or the judges who made them, the protection would be far less than the legislative privilege created by the Federal Constitution. 17 Our cases, however, have made clear that "[a]lthough the Speech or Debate Clause's historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system." United States v. Brewster, 408 U.S., at 508, 92 S.Ct., at 2535. In deciding whether the principles underlying the federal constitutional speech or debate privilege compel a similar evidentiary privilege on behalf of state legislators, the analysis must look primarily to the American experience, including our structure of federalism which had no counterpart in England. 18 Two interrelated rationales underlie the Speech or Debate Clause: first, the need to avoid intrusion by the Executive or Judiciary into the affairs of a coequal branch, and second, the desire to protect legislative independence. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 502-503, 95 S.Ct. 1813, 1820-1821, 44 L.Ed.2d 324 (1975). Cases considering the Speech or Debate Clause have frequently arisen in the context of a federal criminal prosecution of a Member of Congress and have therefore accented the first rationale. Only recently in such a case, we re-emphasized that a central purpose of the Clause is "to preserve the constitutional structure of separate, coequal, and independent branches of government. The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities." United States v. Helstoski, 442 U.S., at 491, 99 S.Ct., at 2441. Accord, United States v. Johnson, supra, 383 U.S., at 180-181, 86 S.Ct., at 755-756. The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances. 8 The Works of Thomas Jefferson 322 (Ford ed. 1904); 1 The Works of James Wilson 421 (R. McCloskey ed. 1967). 19 The first rationale, resting solely on the separation of powers doctrine, gives no support to the grant of a privilege to state legislators in federal criminal prosecutions. It requires no citation of authorities for the proposition that the Federal Government has limited powers with respect to the states, unlike the unfettered authority which English monarchs exercised over the Parliament. By the same token, however, in those areas where the Constitution grants the Federal Government the power to act, the Supremacy Clause dictates that federal enactments will prevail over competing state exercises of power. Thus, under our federal structure, we do not have the struggles for power between the federal and state systems such as inspired the need for the Speech or Debate Clause as a restraint on the Federal Executive to protect federal legislators. 20 Apart from the separation of powers doctrine, it is also suggested that principles of comity require the extension of a speech or debate type privilege to state legislators in federal criminal prosecutions. However, as we have noted, federal interference in the state legislative process is not on the same constitutional footing with the interference of one branch of the Federal Government in the affairs of a coequal branch. Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). Cf. Dombrowski v. Pfister, 380 U.S. 479, 489-492, 85 S.Ct. 1116, 1122-1124, 14 L.Ed.2d 22 (1965) (federal court may enjoin state-court application of a clearly unconstitutional statute).9 Our opinion in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), is not to the contrary. There, we held that a federal statute regulating the wages of the state employees was unconstitutional because it "operate[d] to directly displace the States' freedom to structure integral operations in areas of traditional government functions." Id., at 852, 96 S.Ct., at 2474. 21 The absence of a judicially created evidentiary privilege for state legislators is not, however, comparable intervention by the Federal Government into essential state functions. First, Gillock's argument, resting on the Tenth Amendment, has no special force with regard to state legislators; on the rationale advanced, state executive officers and members of the state judiciary would have equally plausible claims that the denial of an evidentiary privilege to them resulted in a direct federal impact on traditional state governmental functions. Moreover, we recognized in National League of Cities that the regulation by Congress under the Commerce Clause of individuals is quite different from legislation which directly regulates the internal functions of states. Id., at 840-841, 96 S.Ct., at 2468-2469. Although the lack of an evidentiary privilege for a state legislator might conceivably influence his conduct while in the legislature, it is not in any sense analogous to the direct regulation imposed by the federal wage-fixing legislation in National League of Cities. 22 The second rationale underlying the Speech or Debate Clause is the need to insure legislative independence. Gillock relies heavily on Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), where this Court was cognizant of the potential for disruption of the state legislative process. The issue there, however, was whether state legislators were immune from civil suits for alleged violations of civil rights under 42 U.S.C. § 1983. The claim was made by a private individual who alleged that a state legislative committee hearing was conducted to prevent him from exercising his First Amendment rights. The Court surveyed the history of the speech or debate privilege from its roots in the British parliamentary experience through its adoption in our own Federal Constitution. In light of these "presuppositions of our political history," 341 U.S., at 372, 71 S.Ct., at 786, the Court stated: 23 "We cannot believe that Congress—itself a staunch advocate of legislative freedom—would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language [of § 1983] before us." Id., at 376, 71 S.Ct., at 788. 24 Accordingly, the Court held that a state legislator's common-law absolute immunity from civil suit survived the passage of the Civil Rights Act of 1871.10 25 Although Tenney reflects this Court's sensitivity to interference with the functioning of state legislators, we do not read that opinion as broadly as Gillock would have us. First, Tenney was a civil action brought by a private plaintiff to vindicate private rights. Moreover, the cases in this Court which have recognized an immunity from civil suit for state officials have presumed the existence of federal criminal liability as a restraining factor on the conduct of state officials. As recently as O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), we stated: 26 "Whatever may be the case with respect to civil liability generally, . . . or civil liability for willful corruption, . . . we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. . . . On the contrary, the judicially fashioned doctrine of official immunity does not reach 'so far as to immunize criminal conduct proscribed by an Act of Congress . . ..' Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972)." Id., at 503, 94 S.Ct., at 680 (emphasis supplied). 27 Accord, Imbler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Thus, in protecting the independence of state legislators, Tenney and subsequent cases on official immunity have drawn the line at civil actions.11 28 We conclude, therefore, that although principles of comity command careful consideration, our cases disclose that where important federal interests are at stake, as in the enforcement of federal criminal statutes, comity yields. We recognize that denial of a privilege to a state legislator may have some minimal impact on the exercise of his legislative function; however, similar arguments made to support a claim of Executive privilege were found wanting inUnited States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), when balanced against the need of enforcing federal criminal statutes. There, the genuine risk of inhibiting candor in the internal exchanges at the highest levels of the Executive Branch was held insufficient to justify denying judicial power to secure all relevant evidence in a criminal proceeding. See also United States v. Burr, 25 F.Cas. 187 (No. 14,694) (CCVa.1807). Here, we believe that recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes with only speculative benefit to the state legislative process.12 IV 29 The Federal Speech or Debate Clause, of course, is a limitation on the Federal Executive, but by its terms is confined to federal legislators. The Tennessee Speech or Debate Clause is in terms a limit only on the prosecutorial powers of that State. Congress might have provided that a state legislator prosecuted under federal law should be accorded the same evidentiary privileges as a Member of Congress. Alternatively, Congress could have imported the "spirit" of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), into federal criminal law and directed federal courts to apply to a state legislator the same evidentiary privileges available in a prosecution of a similar charge in the courts of the state. But Congress has chosen neither of these courses. 30 In the absence of a constitutional limitation on the power of Congress to make state officials, like all other persons, subject to federal criminal sanctions, we discern no basis in these circumstances for a judicially created limitation that handicaps proof of the relevant facts. Accordingly, the judgment of the Court of Appeals for the Sixth Circuit is 31 Reversed. 32 Mr. Justice REHNQUIST, with whom Mr. Justice POWELL joins, dissenting. 33 For the reasons stated by Chief Judge Edwards in his opinion in this case for the Court of Appeals for the Sixth Circuit, I would affirm the judgment of that court. 1 Compare United States v. DiCarlo, 565 F.2d 802 (CA1 1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978), and United States v. Craig, 537 F.2d 957 (CA7) (en banc), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976), with In re Grand Jury Proceedings, 563 F.2d 577 (CA3 1977). 2 The count based on 18 U.S.C. § 1952 was subsequently dismissed by the District Court. 3 The Government stated that the offer was made on the assumption that the District Court's prior ruling was correct. The Government, however, explicitly reserved its position that state legislators in federal criminal prosecutions are not entitled to an evidentiary privilege comparable to the Speech or Debate Clause. 4 Gillock would be entitled to request an opinion from the State Attorney General by virtue of his status as a state senator. Only state government officials, not private attorneys, can secure official opinions. Tenn.Code Ann. § 8-609(b)(6) (Supp.1979). 5 Gillock makes no claim that state legislators are entitled to the benefits of the Federal Speech or Debate Clause, which by its terms applies only to "Senators and Representatives." See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 404, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401 (1979). 6 Rule 501 provides in full: "Except as otherwise required by the Constitution of the United States as provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law." 7 We also find it significant that we have not been cited to a single instance in the legislative history of Rule 501 where any Member of Congress manifested interest in providing an evidentiary privilege for state legislators charged in federal court with a violation of a federal criminal statute. 8 This is not to suggest that the privilege law as developed in the states is irrelevant. This Court has taken note of state privilege laws in determining whether to retain them in the federal system. See, e. g., Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (rejection of the antimarital facts privilege). 9 Compare Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (suit for injunction against individual Members of Congress to require the seating of Representative Adam Clayton Powell barred by the Speech or Debate Clause), with Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966) (individual state legislators enjoined from depriving Julian Bond of his seat in the Georgia Legislature). 10 Despite the frequent invocation of the federal Speech or Debate Clause in Tenney, the Court has made clear that the holding was grounded on its interpretation of federal common law, not on the Speech or Debate Clause. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S., at 404, 99 S.Ct., at 1179. 11 Federal prosecutions of state and local officials, including state legislators, using evidence of their official acts are not infrequent. See, e. g., United States v. Rabbitt, 583 F.2d 1014 (CA8 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979); United States v. Mazzei, 521 F.2d 639 (CA3), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975); United States v. Homer, 411 F.Supp. 972 (W.D.Pa.1976). See also Anderson v. United States, 417 U.S. 211, 214-215, 94 S.Ct. 2253, 2257-2258, 41 L.Ed.2d 20 (1974). Of course, even a Member of Congress would not be immune under the Federal Speech or Debate Clause from prosecution for the acts which form the basis of the Hobbs Act, 18 U.S.C. § 1951, and RICO, 18 U.S.C. § 1962, charges here. See United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979). 12 Cf. Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972) ("[W]e cannot carry a judicially fashioned privilege so far as to immunize criminal conduct proscribed by an Act of Congress or to frustrate the grand jury's inquiry into whether publication of these classified documents violated a federal criminal statute").

89

445 U.S. 480 100 S.Ct. 1254 63 L.Ed.2d 552 Joseph VITEK, etc., et al., Applicants,v.Larry D. JONES. No. 78-1155. Argued Dec. 3, 1979. Decided March 25, 1980. Syllabus Appellee, a convicted felon, was transferred from state prison to a mental hospital pursuant to a Nebraska statute (§ 83-180(1)) which provides that if a designated physician or psychologist finds that a prisoner "suffers from a mental disease or defect" that "cannot be given proper treatment" in prison, the Director of Correctional Services may transfer the prisoner to a mental hospital. In an action challenging the constitutionality of § 83-180(1) on procedural due process grounds, the District Court declared the statute unconstitutional as applied to appellee, holding that transferring him to the mental hospital without adequate notice and opportunity for a hearing deprived him of liberty without due process of law contrary to the Fourteenth Amendment, and that such transfers must be accompanied by adequate notice, an adversary hearing before an independent decisionmaker, a written statement by the factfinder of the evidence relied on and the reasons for the decision, and the availability of appointed counsel for indigent prisoners. The court permanently enjoined the State from transferring appellee (who meanwhile had been transferred back to prison) to the mental hospital without following the prescribed procedures. Subsequently, appellee was paroled on condition that he accept mental treatment, but he violated that parole and was returned to prison. Relying on appellee's history of mental illness and the State's representation that he was a serious threat to his own and others' safety, the District Court held that the parole and revocation thereof did not render the case moot because appellee was still subject to being transferred to the mental hospital. Held : The judgment is affirmed as modified. Pp. 486-497; 497-500. Affirmed as modified. Mr. Justice WHITE delivered the opinion of the Court with respect to Parts I, II, III, IV-A, and V, concluding that: 1 1. The District Court properly found that the case is not moot. The reality of the controversy between appellee and the State has not been lessened by the cancellation of his parole and his return to prison, where he is protected from further transfer by the District Court's judgment and injunction. Under these circumstances, it is not "absolutely clear," absent the injunction, that the State's alleged wrongful behavior could not reasonably be expected to recur. Pp. 486-487. 2 2. The involuntary transfer of appellee to a mental hospital implicates a liberty interest that is protected by the Due Process Clause of the Fourteenth Amendment. Pp. 487-494. 3 (a) The District Court properly identified a liberty interest rooted in § 83-180(1), under which a prisoner could reasonably expect that he would not be transferred to a mental hospital without a finding that he was suffering from a mental illness for which he could not secure adequate treatment in prison. The State's reliance on the opinion of a designated physician or psychologist for determining whether the conditions warranting transfer exist neither removes the prisoner's interest from due process protection nor answers the question of what process is due under the Constitution. Pp. 488-491. 4 (b) The District Court was also correct in holding that, independently of § 83-180(1), the transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections. Involuntary commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual. While a conviction and sentence extinguish an individual's right to freedom from confinement for the term of his sentence, they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections. Here, the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections. Pp. 491-494. 5 3. The District Court properly identified and weighed the relevant factors in arriving at its judgment. Pp. 495-496. 6 (a) Although the State's interest in segregating and treating mentally ill patients is strong, the prisoner's interest in not being arbitrarily classified as mentally ill and subjected to unwelcome treatment is also powerful, and the risk of error in making the determinations required by § 83-180(1) is substantial enough to warrant appropriate procedural safeguards against error. P. 495. 7 (b) The medical nature of the inquiry as to whether or not to transfer a prisoner to a mental hospital does not justify dispensing with due process requirements. P. 495. 8 (c) Because prisoners facing involuntary transfer to a mental hospital are threatened with immediate deprivation of liberty interests and because of the risk of mistaken transfer, the District Court properly determined that certain procedural protections, including notice and an adversary hearing, were appropriate in the circumstances present in this case. Pp. 495-496. 9 Mr. Justice WHITE, joined by Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS, concluded in Part IV-B that it is appropriate that counsel be provided to indigent prisoners whom the State seeks to treat as mentally ill. Such a prisoner has an even greater need for legal assistance than does a prisoner who is illiterate and uneducated, because he is more likely to be unable to understand or exercise his rights. Pp. 496-497. 10 Mr. Justice POWELL concluded that although the State is free to appoint a licensed attorney to represent a prisoner who is threatened with involuntary transfer to a mental hospital, it is not constitutionally required to do so, and that due process will be satisfied so long as such a prisoner is provided qualified and independent assistance. Pp. 497-500. 11 Melvin Kent Kammerlohr, Asst. Atty. Gen. of Neb., Lincoln, Neb., for appellants. 12 Thomas A. Wurtz, Omaha, Neb., for appellee. 13 Mr. Justice WHITE delivered the opinion of the Court, except as to Part IV-B. 14 The question in this case is whether the Due Process Clause of the Fourteenth Amendment entitles a prisoner convicted and incarcerated in the State of Nebraska to certain procedural rotections, including notice, an adversary hearing, and provision of counsel, before he is transferred involuntarily to a state mental hospital for treatment of a mental disease or defect. 15 * Nebraska Rev.Stat. § 83-176(2) (1976) authorizes the Director of Correctional Services to designate any available, suitable, and appropriate residence facility or institution as a place of confinement for any state prisoner and to transfer a prisoner from one place of confinement to another. Section 83-180(1), however, provides that when a designated physician or psychologist finds that a prisoner "suffers from a mental disease or defect" and "cannot be given proper treatment in that facility," the director may transfer him for examination, study, and treatment to another institution within or without the Department of Correctional Services.1 Any prisoner so transferred to a mental hospital is to be returned to the Department if, prior to the expiration of his sentence, treatment is no longer necessary. Upon expiration of sentence, f the State desires to retain the prisoner in a mental hospital, civil commitment proceedings must be promptly commenced. § 83-180(3).2 16 On May 31, 1974, Jones was convicted of robbery and sentenced to a term of three to nine years in state prison. He was transferred to the penitentiary hospital in January 1975. Two days later he was placed in solitary confinement, where he set his mattress on fire, burning himself severely. He was treated in the burn unit of a private hospital. Upon his release and based on findings required by § 83-180 that he was suffering from a mental illness or defect and could not receive proper treatment in the penal complex, he was transferred to the security unit of the Lincoln Regional Center, a state mental hospital under the jurisdiction of the Department of Public Institutions. 17 Jones then intervened in this case, which was brought by other prisoners against the appropriate state officials (the State) challenging on procedural due process grounds the adequacy of the procedures by which the Nebraska statutes permit transfers from the prison complex to a mental hospital.3 On August 17, 1976, a three-judge District Court, convened pursuant to 28 U.S.C. § 2281 (1970 ed.),4 denied the State's motion for summary judgment and trial ensued. On September 12, 1977, the District Court declared § 83-180 unconstitutional as applied to Jones, holding that transferring Jones to a mental hospital without adequate notice and opportunity for a hearing deprived him of liberty without due process of law contrary to the Fourteenth Amendment and that such transfers must be accompanied by adequate notice, an adversary hearing before an independent decisionmaker, a written statement by the factfinder of the evidence relied on and the reasons for the decision, and the availability of appointed counsel for indigent prisoners. Miller v. Vitek, 437 F.Supp. 569 (D.C.Neb.1977). Counsel was requested to suggest appropriate relief. 18 In response to this request, Jones revealed that on May 27, 1977, prior to the District Court's decision, he had been transferred from Lincoln Regional Center to the psychiatric ward of the penal complex but prayed for an injunction against further transfer to Lincoln Regional Center. The State conceded that an injunction should enter if the District Court was firm in its belief that the section was unconstitutional. The District Court then entered its judgment declaring § 83-180 unconstitutional as applied to Jones and permanently enjoining the State from transferring Jones to Lincoln Regional Center without following the procedures prescribed in its judgment. 19 We noted probable jurisdiction 434 U.S. 1060, 98 S.Ct. 1230, 55 L.Ed.2d 760 (1978). Meanwhile, Jones had been paroled, but only on condition that he accept psychiatric treatment at a Veterans' Administration Hospital. We vacated the judgment of the District Court and remanded the case to that court for consideration of the question of mootness. Vitek v. Jones, 436 U.S. 407, 98 S.Ct. 2276, 56 L.Ed.2d 381 (1978). Both the State and Jones at this juncture insisted that the case was not moot. The State represented that because "Jones' history of mental illness indicates a serious threat to his own safety, as well as to that of others . . . there is a very real expectation" that he would again be transferred if the injunction was removed. App. to Juris. Statement 24. Jones insisted that he was receiving treatment for mental illness against his will and that he was continuing to suffer from the stigmatizing consequences of the previous determination that he was mentally ill. On these representations, the District Court found that the case was not moot because Jones "is subject to and is in fact under threat of being transferred to the state mental hospital under § 83-180." Ibid. The District Court reinstated its original judgment. We postponed consideration of jurisdiction to a hearing on the merits. 441 U.S. 922, 99 S.Ct. 2029, 60 L.Ed.2d 395 (1979). Meanwhile, Jones had violated his parole, his parole had been revoked, and he had been reincarcerated in the penal complex. II 20 We agree with the parties in this case that a live controversy exists and that the case is not moot. Jones was declared to be mentally ill pursuant to § 83-180 and was transferred to a mental hospital and treated. He was later paroled but only on condition that he accept mental treatment. He violated that parole and has been returned to the penal complex. On our remand to consider mootness, the District Court, relying on Jones' history of mental illness and the State's representation that he represented a serious threat to his own safety as well as to that of others, found that Jones "is in fact under threat of being transferred to the state mental hospital under § 83-180." We see no reason to disagree with the District Court's assessment at that time, and the reality of the controversy between Jones and the State has not been lessened by the cancellation of his parole and his return to the state prison, where he is protected from further transfer by the outstanding judgment and injunction of the District Court. The State, believing that the case is not moot, wants the injunction removed by the reversal of the District Court's judgment. Jones, on the other hand, insists that the judgment of the District Court be sustained and the protection against transfer to a mental hospital, except in accordance with the specified procedures, be retained. 21 Against this background, it is not "absolutely clear," absent the injunction, "that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).5 Furthermore, as the matter now stands, the § 83-180 determination that Jones suffered from mental illness has been declared infirm by the District Court. Vacating the District Court's judgment as moot would not only vacate the injunction against transfer but also the declaration that the procedures employed by the State afforded an inadequate basis for declaring Jones to be mentally ill. In the posture of the case, it is not moot. III 22 On the merits, the threshold question in this case is whether the involuntary transfer of a Nebraska state prisoner to a mental hospital implicates a liberty interest that is protected by the Due Process Clause. The District Court held that it did and offered two related reasons for its conclusion. The District Court first identified a liberty interest rooted in § 83-180(1), under which a prisoner could reasonably expect that he would not be transferred to a mental hospital without a finding that he was suffering from a mental illness for which he could not secure adequate treatment in the correctional facility. Second, the District Court was convinced that characterizing Jones as a mentally ill patient and transferring him to the Lincoln Regional Center had "some stigmatizing" consequences which, together with the mandatory behavior modification treatment to which Jones would be subject at the Lincoln Center, constituted a major change in the conditions of confinement amounting to a "grievous loss" that should not be imposed without the opportunity for notice and an adequate hearing. We agree with the District Court in both respects. A. 23 We have repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment. There is no "constitutional or inherent right" to parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), but once a State grants a prisoner the conditional liberty properly dependent on the observance of special parole restrictions, due process protections attach to the decision to revoke parole. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The same is true of the revocation of probation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), we held that a state-created right to good-time credits, which could be forfeited only for serious misbehavior, constituted a liberty interest protected by the Due Process Clause. We also noted that the same reasoning could justify extension of due process protections to a decision to impose "solitary" confinement because "[it] represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct." Id., at 571-572, n. 19, 94 S.Ct., at 2982, n. 19. Once a State has granted prisoners a liberty interest, we held that due process protections are necessary "to insure that the state-created right is not arbitrarily abrogated." Id., at 557, 94 S.Ct., at 2975. 24 In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), we held that the transfer of a prisoner from one prison to another does not infringe a protected liberty interest. But in those cases transfers were discretionary with the prison authorities, and in neither case did the prisoner possess any right or justifiable expectation that he would not be transferred except for misbehavior or upon the occurrence of other specified events. Hence, "the predicate for invoking the protection of the Fourteenth Amendment as construed and applied in Wolff v. McDonnell [was] totally nonexistent." Meachum v. Fano, supra, 427 U.S., at 226-227, 96 S.Ct., at 2540. 25 Following Meachum v. Fano and Montanye v. Haymes, we continued to recognize that state statutes may grant prisoners liberty interests that invoke due process protections when prisoners are transferred to solitary confinement for disciplinary or administrative reasons. Enomoto v. Wright, 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978), summarily aff'g 462 F.Supp. 397 (ND Cal.1976). Similarly in Greenholtz v. Nebraska Penal Inmates, supra, we held that state law granted petitioners a sufficient expectancy of parole to entitle them to some measure of constitutional protection with respect to parole decisions. 26 We think the District Court properly understood and applied these decisions. Section 83-180(1) provides that if a designated physician finds that a prisoner "suffers from a mental disease or defect" that "cannot be given proper treatment" in prison, the Director of Correctional Services may transfer a prisoner to a mental hospital. The District Court also found that in practice prisoners are transferred to a mental hospital only if it is determined that they suffer from a mental disease or defect that cannot adequately be treated within the penal complex. This "objective expectation, firmly fixed in state law and official penal complex practice," that a prisoner would not be transferred unless he suffered from a mental disease or defect that could not be adequately treated in the prison, gave Jones a liberty interest that entitled him to the benefits of appropriate procedures in connection with determining the conditions that warranted his transfer to a mental hospital. Under our cases, this conclusion of the District Court is unexceptionable. 27 Appellants maintain that any state-created liberty interest that Jones had was completely satisfied once a physician or psychologist designated by the director made the findings required by § 83-180(1) and that Jones was not entitled to any procedural protections.6 But if the State grants a pris oner a right or expectation that adverse action will not be taken against him except upon the occurrence of specified behavior, "the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed." Wolff v. McDonnell, 418 U.S., at 558, 94 S.Ct., at 2976. These minimum requirements being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action. In Morrissey, Gagnon, and Wolff, the States had adopted their own procedures for determining whether conditions warranting revocation of parole, probation, or good-time credits had occurred; yet we held that those procedures were constitutionally inadequate. In like manner, Nebraska's reliance on the opinion of a designated physician or psychologist for determining whether the conditions warranting a transfer exist neither removes the prisoner's interest from due process protection nor answers the question of what process is due under the Constitution. B 28 The District Court was also correct in holding that independently of § 83-180(1), the transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections. The issue is whether after a conviction for robbery, Jones retained a residuum of liberty that would be infringed by a transfer to a mental hospital without complying with minimum requirements of due process. 29 We have recognized that for the ordinary citizen, commitment to a mental hospital produces "a massive curtailment of liberty," Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972), and in consequence "requires due process protection." Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979); O'Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 2496, 45 L.Ed.2d 396 (1975) (BURGER, C. J., concurring). The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital "can engender adverse social consequences to the individual" and that "[w]hether we label this phenomena 'stigma' or choose to call it something else . . . we recognize that it can occur and that it can have a very significant impact on the individual." Addington v. Texas, supra, at 425-426, 99 S.Ct., at 1809. See also Parham v. J. R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979). Also, "[a]mong the historic liberties" protected by the Due Process Clause is the "right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security." Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). Compelled treatment in the form of mandatory behavior modification programs, to which the District Court found Jones was exposed in this case, was a proper factor to be weighed by the District Court. Cf. Addington v. Texas, supra, at 427, 99 S.Ct., at 1810. 30 The District Court, in its findings, was sensitive to these concerns: 31 "[T]he fact of greater limitations on freedom of action at the Lincoln Regional Center, the fact that a transfer to the Lincoln Regional Center has some stigmatizing consequences, and the fact that additional mandatory behavior modification systems are used at the Lincoln Regional Center combine to make the transfer a 'major change in the conditions of confinement' amounting to a 'grievous loss' to the inmate." Miller v. Vitek, 437 F.Supp., at 573. 32 Were an ordinary citizen to be subjected involuntarily to these consequences, it is undeniable that protected liberty interests would be unconstitutionally infringed absent compliance with the procedures required by the Due Process Clause. We conclude that a convicted felon also is entitled to the benefit of procedures appropriate in the circumstances before he is found to have a mental disease and transferred to a mental hospital. 33 Undoubtedly, a valid criminal conviction and prison sentence extinguish a defendant's right to freedom from confinement. Greenholtz v. Nebraska Penal Inmates, 442 U.S., at 7, 99 S.Ct., at 2103. Such a conviction and sentence sufficiently extinguish a defendant's liberty "to empower the State to confine him in any of its prisons." Meachum v. Fano, 427 U.S., at 224, 96 S.Ct., at 2538 (emphasis deleted). It is also true that changes in the conditions of confinement having a substantial adverse impact on the prisoner are not alone sufficient to invoke the protections of the Due Process Clause "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him." Montanye v. Haymes, 427 U.S., at 242, 96 S.Ct., at 2547. 34 Appellants maintain that the transfer of a prisoner to a mental hospital is within the range of confinement justified by imposition of a prison sentence, at least after certification by a qualified person that a prisoner suffers from a mental disease or defect. We cannot agree. None of our decisions holds that conviction for a crime entitles a State not only to confine the convicted person but also to determine that he has a mental illness and to subject him involuntarily to institutional care in a mental hospital. Such consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by a person convicted of crime. Our cases recognize as much and reflect an understanding that involuntary commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Jackson v. Indiana, 406 U.S. 715, 724-725, 92 S.Ct. 1845, 1851, 32 L.Ed.2d 435 (1972). A criminal conviction and sentence of imprisonment extinguish an individual's right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections. 35 In light of the findings made by the District Court, Jones' involuntary transfer to the Lincoln Regional Center pursuant to § 83-180, for the purpose of psychiatric treatment, implicated a liberty interest protected by the Due Process Clause. Many of the restrictions on the prisoner's freedom of action at the Lincoln Regional Center by themselves might not constitute the deprivation of a liberty interest retained by a prisoner, see Wolff v. McDonnell, 418 U.S., at 572, n. 19, 94 S.Ct., at 2982, n. 19; cf. Baxter v. Palmigiano, 425 U.S. 308, 323, 96 S.Ct. 1551, 1560, 47 L.Ed.2d 810 (1976). But here, the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections. IV 36 The District Court held that to afford sufficient protection to the liberty interest it had identified, the State was required to observe the following minimum procedures before transferring a prisoner to a mental hospital: 37 "A. Written notice to the prisoner that a transfer to a mental hospital is being considered; 38 "B. A hearing, sufficiently after the notice to permit the prisoner to prepare, at which disclosure to the prisoner is made of the evidence being relied upon for the transfer and at which an opportunity to be heard in person and to present documentary evidence is given; 39 "C. An opportunity at the hearing to present testimony of witnesses by the defense and to confront and cross-examine witnesses called by the state, except upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or cross-examination; 40 "D. An independent decisionmaker; 41 "E. A written statement by the factfinder as to the evidence relied on and the reasons for transferring the inmate; 42 "F. Availability of legal counsel, furnished by the state, if the inmate is financially unable to furnish his own; and 43 "G. Effective and timely notice of all the foregoing rights." 437 F.Supp., at 575. A. 44 We think the District Court properly identified and weighed the relevant factors in arriving at its judgment. Concededly the interest of the State in segregating and treating mentally ill patients is strong. The interest of the prisoner in not being arbitrarily classified as mentally ill and subjected to unwelcome treatment is also powerful, however; and as the District Court found, the risk of error in making the determinations required by § 83-180 is substantial enough to warrant appropriate procedural safeguards against error. 45 We recognize that the inquiry involved in determining whether or not to transfer an inmate to a mental hospital for treatment involves a question that is essentially medical. The question whether an individual is mentally ill and cannot be treated in prison "turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists." Addington v. Texas, 441 U.S., at 429, 99 S.Ct., at 1811. The medical nature of the inquiry, however, does not justify dispensing with due process requirements. It is precisely "[t]he subtleties and nuances of psychiatric diagnoses" that justify the requirement of adversary hearings. Id., at 430, 99 S.Ct., at 1811. 46 Because prisoners facing involuntary transfer to a mental hospital are threatened with immediate deprivation of liberty interests they are currently enjoying and because of the inherent risk of a mistaken transfer, the District Court properly determined that procedures similar to those required by the Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), were appropriate in the circumstances present here. 47 The notice requirement imposed by the District Court no more than recognizes that notice is essential to afford the prisoner an opportunity to challenge the contemplated action and to understand the nature of what is happening to him. Wolff v. McDonnell, supra, at 564, 94 S.Ct., at 2978. Furthermore, in view of the nature of the determinations that must accompany the transfer to a mental hospital, we think each of the elements of the hearing specified by the District Court was appropriate. The interests of the State in avoiding disruption was recognized by limiting in appropriate circumstances the prisoner's right to call witnesses, to confront and cross examine. The District Court also avoided unnecessary intrusion into either medical or correctional judgments by providing that the independent decisionmaker conducting the transfer hearing need not come from outside the prison or hospital administration. 437 F.Supp., at 574. B* 48 The District Court did go beyond the requirements imposed by prior cases by holding that counsel must be made available to inmates facing transfer hearings if they are financially unable to furnish their own. We have not required the automatic appointment of counsel for indigent prisoners facing other deprivations of liberty, Gagnon v. Scarpelli, 411 U.S., at 790, 93 S.Ct., at 1763; Wolff v. McDonnell, supra, at 569-570, 94 S.Ct., at 2981; but we have recognized that prisoners who are illiterate and uneducated have a greater need for assistance in exercising their rights. Gagnon v. Scarpelli, supra, at 786-787, 93 S.Ct., at 1761-1762; Wolff v. McDonnell, supra, at 570, 94 S.Ct., at 2981. A prisoner thought to be suffering from a mental disease or defect requiring involuntary treatment probably has an even greater need for legal assistance, for such a prisoner is more likely to be unable to understand or exercise his rights. In these circumstances, it is appropriate that counsel be provided to indigent prisoners whom the State seeks to treat as mentally ill. V 49 Because Mr. Justice POWELL, while believing that Jones was entitled to competent help at the hearing, would not require the State to furnish a licensed attorney to aid him, the judgment below is affirmed as modified to conform with the separate opinion filed by Mr. Justice POWELL. 50 So ordered. 51 Mr. Justice POWELL, concurring in part. 52 I join the opinion of the Court except for Part IV-B. I agree with Part IV-B insofar as the Court holds that qualified and independent assistance must be provided to an inmate who is threatened with involuntary transfer to a state mental hospital. I do not agree, however, that the requirement of independent assistance demands that a licensed attorney be provided.1 53 * In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), my opinion for the Court held that counsel is not necessarily required at a probation revocation hearing. In reaching this decision the Court recognized both the effects of providing counsel to each probationer and the likely benefits to be derived from the assistance of counsel. "The introduction of counsel into a revocation proceeding [would] alter significantly the nature of the proceeding," id., at 787, 93 S.Ct., at 1762, because the hearing would inevitably become more adversary. We noted that probationers would not always need counsel because in most hearings the essential facts are undisputed. In lieu of a per se rule we held that the necessity of providing counsel should be determined on a case-by-case basis. In particular, we stressed that factors governing the decision to provide counsel include (i) the existence of factual disputes or issues which are "complex or otherwise difficult to develop or present," and (ii) "whether the probationer appears to be capable of speaking effectively for himself." Id., at 790, 791, 93 S.Ct., at 1764. 54 Consideration of these factors, and particularly the capability of the inmate, persuades me that the Court is correct that independent assistance must be provided to an inmate before he may be transferred involuntarily to a mental hospital. The essence of the issue in an involuntary commitment proceeding will be the mental health of the inmate. The resolution of factual disputes will be less important than the ability to understand and analyze expert psychiatric testimony that is often expressed in language relatively incomprehensible to laymen. It is unlikely that an inmate threatened with involuntary transfer to mental hospitals will possess the competence or training to protect adequately his own interest in these state-initiated proceedings. And the circumstances of being imprisoned without normal access to others who may assist him places an additional handicap upon an inmate's ability to represent himself. I therefore agree that due process requires the provision of assistance to an inmate threatened with involuntary transfer to a mental hospital. II 55 I do not believe, however, that an inmate must always be supplied with a licensed attorney. "[D]ue Process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). See Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18 (1976). Our decisions defining the necessary qualifications for an impartial decisionmaker demonstrate that the requirements of due process turn on the nature of the determination which must be made. "Due Process has never been thought to require that the neutral and detached trier of fact be law trained or a judicial or administrative officer." Parham v. J. R., 442 U.S. 584, 607, 99 S.Ct. 2493, 2506, 61 L.Ed.2d 101 (1979). In that case, we held that due process is satisfied when a staff physician determines whether a child may be voluntarily committed to a state mental institution by his parents. That holding was based upon recognition that the issues of civil commitment "are essentially medical in nature," and that " 'neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments.' " Id., at 607, 609, 99 S.Ct., at 2506, 2507, quoting In re Roger S., 19 Cal.3d 921, 942, 141 Cal.Rptr. 298, 311, 569 P.2d 1286, 1299 (1977) (Clark, J., dissenting). See also Morrissey v. Brewer, supra, 408 U.S., at 489, 92 S.Ct., at 2604; Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970). 56 In my view, the principle that due process does not always require a law-trained decisionmaker supports the ancillary conclusion that due process may be satisfied by the provision of a qualified and independent adviser who is not a lawyer. As in Parham v. J. R., the issue here is essentially medical. Under state law, a prisoner may be transferred only if he "suffers from a mental disease or defect" and "cannot be given proper treatment" in the prison complex. Neb.Rev. tat. § 83-180(1) (1976). The opinion of the Court allows a non-lawyer to act as the impartial decisionmaker in the transfer proceeding. Ante, at 496.2 57 The essence of procedural due process is a fair hearing. I do not think that the fairness of an informal hearing designed to determine a medical issue requires participation by lawyers. Due process merely requires that the State provide an inmate with qualified and independent assistance. Such assistance may be provided by a licensed psychiatrist or other mental health professional. Indeed, in view of the nature of the issue involved in the transfer hearing, a person possessing such professional qualifications normally would be preferred. As the Court notes, "[t]he question whether an individual is mentally ill and cannot be treated in prison 'turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.' " Ante, at 495, quoting Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323 (1979). I would not exclude, however, the possibility that the required assistance may be rendered by competent laymen in some cases. The essential requirements are that the person provided by the State be competent and independent, and that he be free to act solely in the inmate's best interest. 58 In sum, although the State is free to appoint a licensed attorney to represent an inmate, it is not constitutionally required to do so. Due process will be satisfied so long as an inmate facing involuntary transfer to a mental hospital is provided qualified and independent assistance. 59 Mr. Justice STEWART, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting. 60 It seems clear to me that this case is now moot. Accordingly, I would vacate the judgment and remand the case to the District Court with directions to dismiss the complaint. United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36. 61 As the Court points out, this is not a class action, and the appellee is now incarcerated in the Nebraska Penal and Correctional Complex with an anticipated release date in March 1982. See ante, at 485-487, and n. 3, ante. In that status, the appellee is simply one of thousands of Nebraska prisoners, with no more standing than any other to attack the constitutionality of Neb.Rev.Stat. § 83-180(1) (1976) on the sole basis of the mere possibility that someday that statute might be invoked to transfer him to another institution. 62 Although the appellee was once transferred in accord with § 83-180(1), there is no demonstrated probability that that will ever happen again. Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed. 350. And this case is not one that by its nature falls within the ambit of the "capable of repetition, yet evading review" exception to established principles of mootness. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310; Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1. If the appellee should again be threatened with transfer under the allegedly infirm statute, there will be ample time to reach the merits of his claim. 63 " 'To adjudicate a cause which no longer exists is a proceeding which this Court uniformly has declined to entertain.' Brownlow v. Schwartz, 261 U.S. 216, 217-218 [43 S.Ct. 263, at page 264, 67 L.Ed. 620]." Oil Workers v. Missouri, 361 U.S. 363, 371, 80 S.Ct. 391, 396, 4 L.Ed.2d 373. 64 Mr. Justice BLACKMUN, dissenting. 65 I agree with Mr. Justice STEWART that this case is not properly before us. I write separately to express my own reasons for reaching that conclusion. 66 The claimed harm that gave birth to this lawsuit was the alleged deprivation of liberty attending appellee's transfer to the Lincoln Regional Center. It is clear to me that that asserted injury disappeared, at the latest, when appellee was granted parole.1 Cf. Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975). So did any immediate threat that that injury would be suffered again. Appellee has been returned to custody, however, and the parties agree that his reincarceration, coupled with his history of mental problems, has brought the controversy back to life. 67 Given these facts, the issue is not so much one of mootness as one of ripeness. At most, although I think otherwise, it is a case presenting a "mixed question" of ripeness and mootness, hinging on the possibility that the challenged procedures will be applied again to appellee. This Court has confronted mixed questions of this kind in cases presenting issues "capable of repetition, yet evading review," see, e. g., Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), and Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and in cases concerning the cessation of challenged conduct during the pendency of litigation, see, e. g., Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29 (1944). In those contexts, the Court has lowered the ripeness threshold so as to preclude manipulation by the parties or the mere passage of time from frustrating judicial review. Mr. Justice STEWART correctly observes, and the Court apparently concedes, however, that the "capable of repetition" doctrine does not apply here. Neither does the liberal rule applied in "voluntary cessation" cases, since the current state of affairs is in no way the product of the appellants' voluntary discontinuation of their challenged conduct.2 Certainly it is not the result of any effort on the part of the appellants to avoid review by this Court. Thus, since these mixed mootness/ripeness rules are inapplicable, this case presents for me nothing more than a plain, old-fashioned question of ripeness.3 68 The Court's cases lay down no mechanistic test for determining whether a dispute is ripe for adjudication. But past formulations are uniformly more rigorous than the one the Court now applies. The Court has observed that "[p]ast exposure to illegal conduct does not in itself show a present case or controversy," O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974), and that "general assertions or inferences" that illegal conduct will recur do not render a case ripe. Id., at 497, 94 S.Ct., at 676. "A hypothetical threat is not enough." Public Workers v. Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947). There must be "actual present or immediately threatened injury resulting from unlawful governmental action." Laird v. Tatum, 408 U.S. 1, 15, 92 S.Ct. 2318, 2326, 33 L.Ed.2d 154 (1972). See Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973) (requiring "some threatened or actual injury"); Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923) (requiring that the litigant "has sustained or is immediately in danger of sustaining some direct injury"). A "substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality" is required. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959-960, 22 L.Ed.2d 113 (1969), quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). 69 Applying these principles, I have difficulty in perceiving an existing "case or controversy" here. Since our remand, the state officials have indicated nothing more than that they have a general right to apply their statute, and to apply it to appellee if necessary.4 They have not expressed a present intent or desire to transfer appellee to a mental facility pursuant to the challenged provisions. Nor have they suggested that they may transfer appellee to the Lincoln Regional Center now on the basis of the diagnosis made five years ago. And they have not suggested that they would subject appellee immediately to a "fresh" psychiatric evaluation if the District Court's injunction were lifted. The appellee has represented that he "does not reside in the psychiatric unit of the Nebraska Penal and Correctional Complex, nor is he receiving or accepting psychiatric treatment." Brief for Appellee 11-12. The brief containing that statement was filed some six months ago and some nine months after the revocation of appellee's parole. 70 In sum, for all that appears, appellee has been assimilated once again into the general prison population, and appellants, at least at this time, are content to leave him where he is.5 Given these facts, determining whether prison officials within two years again will seek to send appellee to a mental institution "takes us into the area of speculation and conjecture." O'Shea v. Littleton, 414 U.S., at 497, 94 S.Ct., at 676. Cf. Longshoremen v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954). 71 It is for these reasons that I would vacate the judgment of the District Court and remand the case to that court with directions to dismiss the complaint. 1 Section 83-180(1) provides: "When a physician designated by the Director of Correctional Services finds that a person committed to the department suffers from a physical disease or defect, or when a physician or psychologist designated by the director finds that a person committed to the department suffers from a mental disease or defect, the chief executive officer may order such person to be segregated from other persons in the facility. If the physician or psychologist is of the opinion that the person cannot be given proper treatment in that facility, the director may arrange for his transfer for examination, study, and treatment to any medical-correctional facility, or to another institution in the Department of Public Institutions where proper treatment is available. A person who is so transferred shall remain subject to the jurisdiction and custody of the Department of Correctional Services and shall be returned to the department when, prior to the expiration of his sentence, treatment in such facility is no longer necessary." 2 Section 83-180(3) provides: "When two psychiatrists designated by the Director of Correctional Services find that a person about to be released or discharged from any facility suffers from a mental disease or defect of such a nature that his release or discharge will endanger the public safety or the safety of the offender, the director shall transfer him to, or if he has already been transferred, permit him to remain in, a psychiatric facility in the Department of Public Institutions and shall promptly commence proceedings applicable to the civil commitment and detention of persons suffering from such disease or defect." 3 After initially certifying this case as a class action, the District Court decertified the class, but permitted intervention by three individual plaintiffs, including Jones. The District Court subsequently dismissed the claims of all plaintiffs except Jones, who is the sole appellee in this Court. 4 The statute authorizing the convening of a three-judge court, 28 U.S.C. § 2281 (1970 ed.), was repealed by Pub.L.94-381, 90 Stat. 1119, effective for actions commenced after August 12, 1976. Because the instant action was filed on November 12, 1975, the three-judge court was properly convened. 5 Because Jones has not completed serving his sentence, he remains subject to the transfer procedures he challenges, unlike the plaintiff in Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), where a challenge to parole procedures was held to be moot because plaintiff had completed his sentence and there was no longer any likelihood whatsoever that he would again be subjected to the parole procedures he challenged. 6 A majority of the Justices rejected an identical position in Arnett v. Kennedy, 416 U.S. 134, 166-167, 94 S.Ct. 1633, 1650-1651, 40 L.Ed.2d 15 (1974) (opinion of POWELL, J., joined by BLACKMUN, J.), 177-178, 94 S.Ct., 1655-1656 (opinion of WHITE, J.), 210-211, 94 S.Ct., 1671-1672 (opinion of MARSHALL, J., joined by DOUGLAS and BRENNAN, JJ.). As Mr. Justice POWELL's opinion observed: "The plurality opinion evidently reasons that the nature of appellee's interest in continued federal employment is necessarily defined and limited by the statutory procedures for discharge and that the constitutional guarantee of procedural due process accords to appellee no procedural protections against arbitrary or erroneous discharge other than those expressly provided in the statute. The plurality would thus conclude that the statute governing federal employment determines not only the nature of appellee's property interest, but also the extent of the procedural protections to which he may lay claim. It seems to me that this approach is incompatible with the principles laid down in [Board of Regents v.] Roth [, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)] and [Perry v.] Sindermann [, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)]. Indeed, it would lead directly to the conclusion that whatever the nature of an individual's statutorily created property interest, deprivation of that interest could be accomplished without notice or a hearing at any time. This view misconceives the origin of the right to procedural due process. That right is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. As our cases have consistently recognized, the adequacy of statutory procedures for deprivation of a statutorily created property interest must be analyzed in constitutional terms. Goldberg v. Kelly, 397 U.S. 254 [90 S.Ct. 1011, 25 L.Ed.2d 287] (1970); Bell v. Burson, 402 U.S. 535 [91 S.Ct. 1586, 29 L.Ed.2d 90] (1971); Board of Regents v. Roth, supra [408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)]; Perry v. Sindermann, supra [408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)]." Id., at 166-167, 94 S.Ct. at 1650-1651. * This part is joined only by Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS. 1 I also agree with the Court's holding that this case is not moot. The question is whether appellee faces a substantial threat that he will again be transferred to a state mental hospital. See Doran v. Salem Inn, Inc., 422 U.S. 922, 930-932, 95 S.Ct. 2561, 2567-2568, 45 L.Ed.2d 648 (1975); Steffel v. Thompson, 415 U.S. 452, 458-460, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973). He was involuntarily transferred from the prison complex to a mental institution, and thereafter paroled upon condition that he continue to receive psychiatric treatment. When he violated parole, he was returned to prison. The State advises us that appellee's "history of mental illness indicates a serious threat to his own safety, as well as to that of others," and "there is a very real expectation" of transfer if the District Court injunction were removed. App. to Juris. Statement 24. The District Court concluded that appellee is under threat of transfer. In these circumstances it is clear that a live controversy remains in which appellee has a personal stake. See Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 581-583, 100 S.Ct. 800, 806-807, 63 L.Ed.2d 36 (1980). 2 The District Court specifically held that "a judicial officer is not required, and the decisionmaker need not be from outside the prison or hospital administration." Miller v. Vitek, 437 F.Supp. 569, 574 (Neb.1977) (three-judge court). 1 The Court does not appear to share this view. It states that, even while at the Veterans' Administration Hospital, appellee Jones "insisted that he was receiving treatment for mental illness against his will." Ante, at 486. It adds that appellee was "paroled, but only on condition that he accepts psychiatric treatment." Ibid. The Court does not identify the precise import of these facts, but a fair inference is that they are meant to suggest that this case—even during the time of appellee's parole—might properly have been pursued on the theory that the appellee was continuing to feel the effects of the alleged deprivation of constitutional rights in receiving in-patient care at the Veterans' Administration Hospital. I cannot accept this suggestion. First, its premise appears to be faulty. The District Court did not find, and it does not appear clearly in the record, that the parole board's offer or appellee's acceptance of parole was in any way related to his prior transfer to the Lincoln Regional Center. Appellee chose to accept conditional parole. Moreover, at the time appellee elected to go on parole, he was being housed at the penal complex, not at the Lincoln Regional Center. Thus, it is not surprising that the District Court based its finding of nonmootness solely on its conclusion that appellee—notwithstanding his conditioned release was "under threat of being transferred to the state mental hospital under § 83-180." App. to Juris. Statement 24. Second, the "continuing injury" theory seems to me to be incorrect as a matter of law. Appellee did not seek or evince any interest in seeking release from the Veterans' Administration Hospital, and a declaration that his initial transfer had been illegal would have neither justified nor predictably led to appellee's removal from that facility. In other words, after accepting the condition grant of parole, appellee could no longer show, as required by the case-or-controversy requirement, "that he personally would benefit in a tangible way from the court's intervention." Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975). The Court also finds some support for its holding in the fact that vacating the District Court's order would remove the declaration that the challenged procedures "afforded an inadequate basis for declaring Jones to be mentally ill." Ante, at 487. If the Court, by this statement, means to imply that appellee's suit is somehow mootness-proof due to the continuing stigma resulting from the transfer to the mental hospital, I cannot accept that sweeping proposition. The Court has never suggested that the "collateral consequences" doctrine of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), which saves an action challenging the validity of a conviction after a prisoner has served his sentence, also saves a challenge to a commitment by a patient who has been released from a mental hospital. Nor does the logic of Sibron —focusing on tangible and remediable collateral consequences, such as use of a prior conviction to enhance a sentence for a later crime, or to impeach credibility if one appears as a witness—comfortably extend to the claim of a former mental patient. See id., at 55, 88 S.Ct., at 1898 (referring to "adverse collateral legal consequences"). 2 The decisions to award and revoke parole were made by the Nebraska Parole Board, not by appellants. 3 It is not clear whether the Court views this as a "voluntary cessation" case. It nowhere expressly relies on the doctrine and does not explain what factors might justify characterizing appellee's present situation as the result of voluntary cessation of illegal conduct by appellants. On the other hand, each of the three decisions cited by the Court to support its application of a "creampuff" ripeness standard, County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); United States v. Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), pivoted on the presence of "voluntary cessation." It is therefore unclear whether the Court deems this a "voluntary cessation" case (without explaining why) or deems the "no reasonable expectation of recurrence" standard—to date a litmus carefully confined by a policy-tailored and principled "voluntary cessation" rule—applicable to an amorphous cluster of facts having nothing to do with parties' artful dodging of well-founded litigation. In either event, the Court's analysis invites the criticism, increasingly voiced, that this Court's decisions on threshold issues "are concealed decisions on the merits of the underlying constitutional claim." Tushnet, The New Law of Standing: A Plea for Abandonment, 62 Cornell L.Rev. 663 (1977). 4 Appellants, to be sure, have announced their intention to continue to use the challenged procedures. That fact, however, is of small, if any, significance, for it is hardly surprising to hear state officials say that they plan to abide by the State's own laws. See Public Workers v. Mitchell, 330 U.S. 75, 91, 67 S.Ct. 556, 565, 91 L.Ed. 754 (1947) ("the existence of the law and the regulations" does not alone render a suit ripe). Cf. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (desuetude statute). 5 I do not go so far as Mr. Justice STEWART does when he says that appellee is "simply one of thousands of Nebraska prisoners." Ante, at 501. For purposes of the "case or controversy" requirement, appellee differs from his fellow inmates in two relevant respects: he has a recent history of perceived psychiatric problems, and in fact he was previously transferred pursuant to the challenged statutes. Cf. O'Shea v. Littleton, 414 U.S., at 496, 94 S.Ct., at 676 ("Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury").

34

445 U.S. 463 100 S.Ct. 1244 63 L.Ed.2d 537 UNITED STATES, Petitioner,v.Keith CREWS. No. 78-777. Argued Oct. 31, 1979. Decided March 25, 1980. Syllabus Immediately after being assaulted and robbed at gunpoint, the victim notified the police and gave them a full description of her assailant. Several days later, respondent, who matched the suspect's description, was seen by the police around the scene of the crime. After an attempt to photograph him proved unsuccessful, respondent was taken into custody, ostensibly as a suspected truant from school, and was detained at police headquarters, where he was briefly questioned, photographed, and then released. Thereafter, the victim identified respondent's photograph as that of her assailant. Respondent was again taken into custody and at a court-ordered lineup was identified by the victim. Respondent was then indicted for armed robbery and other offenses. On respondent's pretrial motion to suppress all identification testimony, the trial court found that respondent's initial detention at the police station constituted an arrest without probable cause and accordingly ruled that the products of that arrest—the photographic and lineup identifications—could not be introduced at trial, but further held that the victim's ability to identify respondent in court was based upon independent recollection untainted by the intervening identifications and that therefore such testimony was admissible. At trial, the victim once more identified respondent as her assailant, and respondent was convicted of armed robbery. The District of Columbia Court of Appeals reversed, holding that the in-court identification testimony should have been excluded as a product of the violation of respondent's Fourth Amendment rights. Held : The judgment is reversed. Pp. 470-477; 477; 477-479. D.C.App., 389 A.2d 277, reversed. Mr. Justice BRENNAN delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that: 1 The in-court identification need not be suppressed as the fruit of respondent's concededly unlawful arrest but is admissible because the police's knowledge of respondent's identity and the victim's independent recollections of him both antedated the unlawful arrest and were thus untainted by the constitutional violation. Pp. 470-474, 477. 2 (a) The victim's presence in the courtroom at respondent's trial was not the product of any police misconduct. Her identity was known long before there was any official misconduct, and her presence in court was thus not traceable to any Fourth Amendment violation. Pp. 471-472. 3 (b) Nor did the illegal arrest infect the victim's ability to give accurate identification testimony. At trial, she merely retrieved her mnemonic representation of the assailant formed at the time of the crime, compared it to the figure of respondent in the courtroom, and positively identified him as the robber. Pp. 472-473. 4 (c) Insofar as respondent challenges his own presence at trial, he cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. Respondent is not himself a suppressible "fruit," and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct. P. 474. 5 Mr. Justice BRENNAN, joined by Mr. Justice STEWART and Mr. Justice STEVENS, concluded in Part II-D that the Court need not decide whether respondent's person should be considered evidence and therefore a possible "fruit" of police misconduct, since the Fourth Amendment violation in question yielded nothing of evidentiary value that the police did not already have. Respondent's unlawful arrest served merely to link together two extant ingredients in his identification. While the exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained, it does not reach backward to taint information that was in official hands prior to any illegality. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, distinguished. Pp. 474-477. 6 Andrew L. Frey, Washington, D. C., for petitioner. 7 W. Gary Kohlman, Washington, D. C., for respondent. 8 Mr. Justice BRENNAN delivered the opinion of the Court, except as to Part II-D. 9 We are called upon to decide whether in the circumstances of this case an in-court identification of the accused by the victim of a crime should be suppressed as the fruit of the defendant's unlawful arrest. 10 * On the morning of January 3, 1974, a woman was accosted and robbed at gunpoint by a young man in the women's restroom on the grounds of the Washington Monument. Her assailant, peering at her through a 4-inch crack between the wall and the door of the stall she occupied, asked for $10 and demanded that he be let into the stall. When the woman refused, the robber pointed a pistol over the top of the door and repeated his ultimatum. The victim then surrendered the money, but the youth demanded an additional $10. When the woman opened her purse and showed her assailant that she had no more cash, he gained entry to her stall and made sexual advances upon her. She tried to resist and pleaded with him to leave. He eventually did, warning his victim that he would shoot her if she did not wait at least 20 minutes before following him out of the restroom. The woman complied, and upon leaving the restroom 20 minutes later, immediately reported the incident to the police. 11 On January 6, two other women were assaulted and robbed in a similar episode in the same restroom. A young man threatened the women with a broken bottle, forced them to hand over $20, and then departed, again cautioning his victims not to leave for 20 minutes. The description of the robber given to the police by these women matched that given by the first victim: All three described their assailant as a young black male, 15-18 years old, approximately 5'5" to 5'8" tall, slender in build, with a very dark complexion and smooth skin. 12 Three days later, on January 9, Officer David Rayfield of the United States Park Police observed respondent in the area of the Washington Monument concession stand and restrooms. Aware of the robberies of the previous week and noting respondent's resemblance to the police "lookout" that described the perpetrator, the officer and his partner approached respondent.1 Respondent gave the officers his name and said that he was 16 years old. When asked why he was not in school, respondent replied that he had just "walked away from school."2 The officers informed respondent of his likeness to the suspect's description, but there was no further questioning about those events. Respondent was allowed to leave, and the officers watched as he entered the nearby restrooms. 13 While respondent was still inside, Officer Rayfield saw and spoke to James Dickens, a tour guide who had previously reported having seen a young man hanging around the area of the Monument on the day of the January 3d robbery. In response to the officer's request to observe respondent as he left the restroom, Dickens tentatively identified him as the individual he had seen on the day of the robbery. 14 On the basis of this additional information, the officers again approached respondent and detained him. Detective Earl Ore, the investigator assigned to the robberies, was immediately summoned. Upon his arrival some 10 or 15 minutes later, Detective Ore attempted to take a Polaroid photograph of respondent, but the inclement weather conditions frustrated his several efforts to produce a picture suitable for display to the robbery victims. Respondent was therefore taken into custody, ostensibly because he was a suspected truant. He was then transported to Park Police headquarters, where the police briefly questioned him, obtained the desired photograph, telephoned his school, and released him. Respondent was never formally arrested or charged with any offense, and his detention at the station lasted no more than an hour. 15 On the following day, January 10, the police showed the victim of the first robbery an array of eight photographs, including one of respondent. Although she had previously viewed over 100 pictures of possible suspects without identifying any of them as her assailant, she immediately selected respondent's photograph as that of the man who had robbed her. On January 13, one of the other victims made a similar identification.3 Respondent was again taken into custody, and at a court-ordered lineup held on January 21, he was positively identified by the two women who had made the photographic identifications. 16 The grand jury returned an indictment against respondent on February 22, 1974, charging him with two counts of armed robbery, two counts of robbery, one count of attempted armed robbery, and three counts of assault with a dangerous weapon.4 Respondent filed a pretrial motion to suppress all identification testimony, contending that his detention on the truancy charges had been merely a pretext to allow the police to obtain evidence for the robbery investigation. After hearing extensive testimony from the three victims, the police officers, and respondent, the trial court found that the respondent's detention at Park Police headquarters on January 9 constituted an arrest without probable cause.5 Accordingly, the court ruled that the products of that arrest—the photographic and lineup identifications—could not be introduced at trial. But the judge concluded that the victims' ability to identify respondent in court was based upon independent recollection untainted by the intervening identifications, and therefore held such testimony admissible. At trial, all three victims identified respondent as their assailant. On April 23, the jury convicted him of armed robbery of the first victim, but returned verdicts of not guilty on all other charges.6 Respondent was sentenced to four years' probation under the Federal Youth Corrections Act, 18 U.S.C. § 5010(a). 17 On appeal, the District of Columbia Court of Appeals, sitting en banc, reversed respondent's conviction and ordered the suppression of the first robbery victim's in-court identification.7 389 A.2d 277 (1978). The court viewed its decision to be a wholly conventional application of the familiar "fruit of the poisonous tree" doctrine. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). After upholding the trial court's finding that respondent was detained without probable cause—a determination that is not challenged in this Court8—the Court of Appeals turned to consideration of what evidentiary consequences ought to flow from that Fourth Amendment violation. In deciding whether the in-court identification should have been suppressed, the court observed that the analysis must focus on whether the evidence was obtained by official "exploitation" of the "primary illegality" within the meaning of Wong Sun, supra,9 and that the principal issue was whether the unlawful police behavior bore a causal relationship to the acquisition of the challenged testimony. The court answered that question in the affirmative, reasoning that but for respondent's unlawful arrest, the police would not have obtained the photograph that led to his subsequent identification by the complaining witnesses and, ultimately, prosecution of the case.10 Satisfied that the in-court identification was thus at least indirectly the product of official misconduct, the court then considered whether any of three commonly advanced exceptions to the exclusionary rule—the "independent source," "inevitable discovery," or "attenuation" doctrines11—nonetheless justified its admission. Finding these exceptions inapplicable, the Court of Appeals concluded that the in-court identification testimony should have been excluded as a product of the violation of respondent's Fourth Amendment rights. We granted certiorari. 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). We reverse. II 18 Wong Sun, supra, articulated the guiding principle for determining whether evidence derivatively obtained from a violation of the Fourth Amendment is admissible against the accused at trial: "The exclusionary prohibition extends as well to the indirect as the direct products of such invasions." 371 U.S., at 484, 83 S.Ct. at 416. See Silverthorne Lumber Co. v. United States, supra; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). As subsequent cases have confirmed, the exclusionary sanction applies to any "fruits" of a constitutional violation—whether such evidence be tangible, physical material actually seized in an illegal search,12 items observed or words overheard in the course of the unlawful activity,13 or confessions or statements of the accused obtained during an illegal arrest and detention.14 19 In the typical "fruit of the poisonous tree" case, however, the challenged evidence was acquired by the police after some initial Fourth Amendment violation, and the question before the court is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the "taint" imposed upon that evidence by the original illegality. Thus most cases begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity. It is the Court of Appeals' application of that premise to the facts of this case that we find erroneous. 20 A victim's in-court identification of the accused has three distinct elements. First, the victim is present at trial to testify as to what transpired between her and the offender, and to identify the defendant as the culprit. Second, the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from her observations of him at the time of the crime. And third, the defendant is also physically present in the courtroom, so that the victim can observe him and compare his appearance to that of the offender. In the present case, it is our conclusion that none of these three elements "has been come at by exploitation" of the violation of the defendant's Fourth Amendment rights. Wong Sun, supra, 371 U.S. at 488, 83 S.Ct., at 417. A. 21 In this case, the robbery victim's presence in the courtroom at respondent's trial was surely not the product of any police misconduct. She had notified the authorities immediately after the attack and had given them a full description of her assailant. The very next day, she went to the police station to view photographs of possible suspects, and she voluntarily assisted the police in their investigation at all times. Thus this is not a case in which the witness' identity was discovered or her cooperation secured only as a result of an unlawful search or arrest of the accused.15 Here the victim's identity was known long before there was any official misconduct, and her presence in court is thus not traceable to any Fourth Amendment violation. B 22 Nor did the illegal arrest infect the victim's ability to give accurate identification testimony. Based upon her observations at the time of the robbery, the victim constructed a mental image of her assailant. At trial, she retrieved this mnemonic representation, compared it to the figure of the defendant, and positively identified him as the robber.16 No part of this process was affected by respondent's illegal arrest. In the language of the "time-worn metaphor" of the poisonous tree, Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968), the toxin in this case was injected only after the evidentiary bud had blossomed; the fruit served at trial was not poisoned. 23 This is not to say that the intervening photographic and lineup identifications—both of which are conceded to be suppressible fruits of the Fourth Amendment violation—could not under some circumstances affect the reliability of the in-court identification and render it inadmissible as well. Indeed, given the vagaries of human memory and the inherent suggestibility of many identification procedures,17 just the opposite may be true. But in the present case the trial court expressly found that the witness' courtroom identification rested on an independent recollection of her initial encounter with the assailant, uninfluenced by the pretrial identifications, and this determination finds ample support in the record.18 In short, the victim's capacity to identify her assailant in court neither resulted from nor was biased by the unlawful police conduct committed long after she had developed that capacity.19 C 24 Insofar as respondent challenges his own presence at trial, he cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886).20 The exclusionary principle of Wong Sun and Silverthorne Lumber Co. delimits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. Respondent is not himself a suppressible "fruit," and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct. D* 25 Respondent argues, however, that in one respect his corpus is itself a species of "evidence." When the victim singles out respondent and declares, "That's the man who robbed me," his physiognomy becomes something of evidentiary value, much like a photograph showing respondent at the scene of the crime.21 And, as with the introduction of such a photograph, he contends that the crucial inquiry for Fourth Amendment purposes is whether that evidence has become available only as a result of official misconduct. We read the Court of Appeals' opinion as essentially adopting this analysis to support its suppression order. See 389 A.2d, at 285-287. 26 We need not decide whether respondent's person should be considered evidence, and therefore a possible "fruit" of police misconduct. For in this case the record plainly discloses that prior to his illegal arrest, the police both knew respondent's identity and had some basis to suspect his involvement in the very crimes with which he was charged. Moreover, before they approached respondent, the police had already obtained access to the "evidence" that implicated him in the robberies, i. e., the mnemonic representations of the criminal retained by the victims and related to the police in the form of their agreement upon his description. In short, the Fourth Amendment violation in this case yielded nothing of evidentiary value that the police did not already have in their grasp.22 Rather, respondent's unlawful arrest served merely to link together two extant ingredients in his identification. The exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality. 27 Accordingly, this case is very different from one like Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), in which the defendant's identity and connection to the illicit activity were only first discovered through an illegal arrest or search. In that case, the defendant's fingerprints were ordered suppressed as the fruits of an unlawful detention. A woman had been raped in her home, and during the next 10 days, the local police rounded up scores of black youths, randomly stopping, interrogating, and fingerprinting them. Davis' prints were discovered to match a set found at the scene of the crime, and on that basis he was arrested and convicted. Had it not been for Davis' illegal detention, however, his prints would not have been obtained and he would never have become a suspect. Here, in contrast, the robbery investigation had already focused on respondent, and the police had independent reasonable grounds to suspect his culpability. 28 We find Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1958), cited with approval in Davis, supra, 394 U.S., at 724, 89 S.Ct., at 1396, helpful in our analysis as well. In Bynum, the defendant voluntarily came down to the police station to look for his brother, who had been arrested earlier that day while driving an auto sought in connection with a robbery. After telling one of the officers that he owned the car, Bynum was arrested and fingerprinted. Those prints were later found to match a set at the scene of the robbery, and Bynum was convicted based in part on that evidence. The Court of Appeals held that the police lacked probable cause at the time of Bynum's arrest, and it ordered the prints suppressed as "something of evidentiary value which the public authorities have caused an arrested person to yield to them during illegal detention." 104 U.S.App.D.C., at 370, 262 F.2d, at 467. As this Court noted in Davis, however, 394 U.S., at 725-726, n. 4, 89 S.Ct., at 1396-1397, n. 4, Bynum was subsequently reindicted for the same offense, and the Government on retrial introduced an older set of his fingerprints, taken from an FBI file, that were in no way connected with his unlawful arrest. The Court of Appeals affirmed that conviction, holding that the fingerprint identification made on the basis of information already in the FBI's possession was not tainted by the subsequent illegality and was therefore admissible. Bynum v. United States, 107 U.S.App.D.C. 109, 274 F.2d 767 (1960). 29 The parallels between Bynum and this case are apparent: The pretrial identification obtained through use of the photograph taken during respondent's illegal detention cannot be introduced; but the in-court identification is admissible, even if respondent's argument be accepted, because the police's knowledge of respondent's identity and the victim's independent recollections of him both antedated the unlawful arrest and were thus untainted by the constitutional violation. The judgment of the Court of Appeals is accordingly 30 Reversed. 31 Mr. Justice MARSHALL took no part in the consideration or decision of this case. 32 Mr. Justice POWELL, with whom Mr. Justice BLACKMUN joins, concurring in part. 33 I join the Court's opinion except for Part II-D. I would reject explicitly, rather than appear to leave open, the claim that a defendant's face can be a suppressible fruit of an illegal arrest. I agree with Mr. Justice WHITE's view, post, at 477-478, that this claim is foreclosed by the rationale of Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), and Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Those cases establish that a defendant properly may be brought into court for trial even though he was arrested illegally. Thus, the only evidence at issue in this case is the robbery victims' identification testimony. I agree with the Court that the victims' testimony is not tainted. 34 Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in the result. 35 The Court today holds that an in-court identification of the accused by the victim of a crime should not be suppressed as the fruit of the defendant's unlawful arrest. Although we are unanimous in reaching this result, Mr. Justice BRENNAN's opinion reserves the question whether a defendant's face can ever be considered evidence suppressible as the "fruit" of an illegal arrest. Because I consider this question to be controlled by the rationale of Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), I write separately. 36 Respondent Crews was convicted after an in-court identification by the victim whose own presence at trial, recollection, and identification the Court holds were untainted by prior illegal conduct by the police. Under these circumstances the manner in which the defendant's presence at trial was obtained is irrelevant to the admissibility of the in-court identification. We held in Frisbie v. Collins, supra, at 522, 72 S.Ct., at 511, "that the power of the court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction" unlawfully. A holding that a defendant's face can be considered evidence suppressible for no reason other than that the defendant's presence in the courtroom is the fruit of an illegal arrest would be tantamount to holding that an illegal arrest effectively insulates one from conviction for any crime where an in-court identification is essential. Such a holding would be inconsistent with the underlying rationale of Frisbie from which we have not retreated. Stone v. Powell, 428 U.S. 465, 485, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975). 37 Although the presence of Crews in the courtroom would not have occurred but for his arrest without probable cause, the in-court identification is held admissible. As I understand Part II-D of Mr. Justice BRENNAN's opinion, however, the in-court identification might have been inadmissible had there not been some reason to suspect Crews of the offense at the time of his illegal arrest. Such a rule excluding an otherwise untainted, in-court identification is wholly unsupported by our previous decisions. Nor do I perceive a constitutional basis for dispensing with probable cause but requiring reasonable suspicion. 38 Assume that a person is arrested for crime X and that answers to questions put to him without Miranda warnings implicate him in crime Y for which he is later tried. The victim of crime Y identifies him in the courtroom; the identification has an independent, untainted basis. I would not suppress such an identification on the grounds that the police had no reason to suspect the defendant of crime Y prior to their illegal questioning and that it is only because of that questioning that he is present in the courtroom for trial. I would reach the same result whether or not his arrest for crime X was without probable cause or reasonable suspicion. 39 I agree that this case is very different from Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), but not for the reason given in my Brother BRENNAN's opinion. In Davis we held that fingerprints obtained from a defendant during an illegal detention had to be suppressed because they were the direct product of the unlawful arrest. Here, however, the evidence ordered suppressed was eyewitness testimony of the victim which was not the product of respondent's arrest. The fact that respondent was present at trial and therefore capable of being identified by the victim is merely the inevitable result of the trial being held, which is permissible under Frisbie, despite respondent's unlawful arrest. Suppression would be required in the Davis situation, but not here, regardless of whether the respective arrests were made without any reasonable suspicion or with something just short of probable cause. 40 Because Mr. Justice BRENNAN leaves open the question whether a defendant's face can be considered a suppressible fruit of an illegal arrest, a question I think has already been sufficiently answered in Frisbie, I cannot join his opinion, although I concur in the result.* I note that a majority of the Court agrees that the rationale of Frisbie forecloses the claim that respondent's face can be suppressible as a fruit of the unlawful arrest. 1 Officer Rayfield testified that his suspicions were further aroused both by respondent's presence on the almost deserted park grounds and by his apparently aimless meanderings around the restroom and concessions area. 2 Tr. 52. References are to the transcript of the suppression hearing and trial held on April 22 and 23, 1974, in the Superior Court of the District of Columbia. 3 The third victim did not review the photographic array, nor did she attend the subsequent lineup. 4 See D.C.Code §§ 22-502, 22-2901, and 22-3202 (1973). 5 The suppression hearing produced conflicting testimony as to the reasons for the attempt to photograph respondent. Officer Rayfield asserted that respondent was processed as a routine juvenile truant, a procedure that involves photographing the suspect and then calling his school and home to determine whether he is in fact truant. Tr. 53-54. Rayfield did acknowledge, however, that he had some suspicion that respondent was the robber described in the police description. Id., at 55, 57. Similarly, Detective Ore, while maintaining that respondent was apprehended and taken down to Park Police headquarters as a suspected truant, id., at 61, 63, admitted that his intent in trying to photograph him was to obtain a picture that could be shown to the complaining witnesses. Id., at 59. The Government does not now attempt to justify respondent's detention on the truancy charge, nor did it raise that argument in the court below. The Court of Appeals found that the procedures followed in respondent's case did not conform to the typical truancy practices described by the police and that the officers never even superficially pursued the truancy matter. By the same token, the court expressly disavowed the existence of a "sham" or "pretext" arrest, and it analyzed respondent's apprehension as a traditional arrest for armed robbery and assault without probable cause. 389 A.2d 277, 299-300, n. 32 (D.C.1978). 6 Because respondent was acquitted of all charges in connection with the robberies of January 6, the only issue raised on his appeal was the admissibility of the first robbery victim's in-court identification. 7 On February 16, 1977, a division of the Court of Appeals originally affirmed respondent's conviction, 369 A.2d 1063. Three months later, however, the full court granted respondent's motion for rehearing and vacated its earlier judgment. Record 356. 8 See Brief for United States 5, n. 4. 9 "We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959)." Wong Sun v. United States, 371 U.S., at 487-488, 83 S.Ct., at 417. 10 "[T]he unlawful arrest produced photographs which were shown to the complaining witnesses who, as a result, identified [respondent]; this resulted in his reapprehension, which yielded a court-ordered lineup identification and, eventually, in-court identification testimony during prosecution of the case." 389 A.2d, at 289. 11 See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939) (attenuation); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920) (independent source); United States ex rel. Owens v. Twomey, 508 F.2d 858, 865 (CA 7 1974) (inevitable discovery). 12 E. g., Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). 13 E. g., United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); see Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); McGinnis v. United States, 227 F.2d 598 (CA1 1955). 14 E. g., Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). 15 See generally Ruffin, Out on a Limb of the Poisonous Tree: The Tainted Witness, 15 UCLA L.Rev. 32 (1967). 16 At oral argument, the Government compared the witness' mental image to an undeveloped photograph of the robber that is given to the police immediately after the crime, but which becomes visible only at the trial. Tr. of Oral Arg. 11-12. Although this analogy may not comport precisely with current psychological theories of perception, see, e. g., Buckout, Eyewitness Testimony, Scientific American 23 (Dec. 1974), it is apt for purposes of analysis. 17 See, e. g., P. Wall, Eye-Witness Identification in Criminal Cases 40-64 (1965); Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 969, 974-989 (1977). 18 United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), enumerated several factors for consideration in applying the "independent origins" test. Id., at 241, 87 S.Ct., at 1939. Cf. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We attach particular significance to the following circumstances which support the trial court's determination in this case: the victim viewed her assailant at close range for a period of 5-10 minutes under excellent lighting conditions and with no distractions, Tr. 4, 7, 111; respondent closely matched the description given by the victim immediately after the robbery, id., at 52, 59; the victim failed to identify anyone other than respondent, id., at 8, but twice selected respondent without hesitation in nonsuggestive pretrial identification procedures, id., at 9-11; and only a week had passed between the victim's initial observation of respondent and her first identification of him, id., at 8-9. Our reliance on the fact that the witness twice identified respondent in out-of-court confrontations is not intended to assign any independent evidentiary value to those identifications for to do so would undermine the exclusionary rule's objectives in denying the Government the benefit of any evidence wrongfully obtained. Rather, the accurate pretrial identifications assume significance only to the extent that they indicate that the witness' ability to identify respondent antedated any police misconduct, and hence that her in-court identification had an "independent source." 19 Respondent contends that the "independent source" test of United States v. Wade, supra, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), although derived from an identical formulation in Wong Sun, see 388 U.S., at 241, 87 S.Ct., at 1939, seeks only to determine whether the in-court identification is sufficiently reliable to satisfy due process, and is thus inapplicable in the context of this Fourth Amendment violation. We agree that a satisfactory resolution of the reliability issue does not provide a complete answer to the considerations underlying Wong Sun, but note only that in the present case both concerns are met. * This part is joined only by Mr. Justice STEWART and Mr. Justice STEVENS. 20 Cf. United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966): "Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book." In some cases, of course, prosecution may effectively be foreclosed by the absence of the challenged evidence. But this contemplated consequence is the product of the exclusion of specific evidence tainted by the Fourth Amendment violation and is not the result of a complete bar to prosecution. 21 Cf. Stevenson v. Mathews, 529 F.2d 61, 63 (CA7 1976). 22 Thus we are not called upon in this case to hypothesize about whether routine investigatory procedures would eventually have led the police to discover respondent's culpability. His involvement in the robberies was already suspected, and no new evidence was acquired through the violation of his Fourth Amendment rights. * For the same reason I cannot join the analysis at the beginning of Part II of the Court's opinion because it implies that a courtroom identification would be inadmissible if the defendant's physical presence had resulted from exploitation of a violation of the defendant's Fourth Amendment rights.

01

445 U.S. 507 100 S.Ct. 1287 63 L.Ed.2d 574 Peter BRANTI, as Public Defender of Rockland County, Petitioner,v.Aaron FINKEL and Alan Tabakman. No. 78-1654. Argued Dec. 4, 1979. Decided March 31, 1980. Syllabus Respondents, both Republicans, brought suit in Federal District Court to enjoin petitioner, a Democrat, who had recently been appointed Public Defender of Rockland County, N. Y., by the Democrat-dominated county legislature, from discharging respondents from their positions as Assistant Public Defenders. Finding that respondents had been satisfactorily performing their jobs and had been selected for termination solely because they were Republicans and that an assistant public defender is neither a policymaker nor a confidential employee, the District Court held that petitioner could not terminate respondents' employment consistent with the First and Fourteenth Amendments, and granted injunctive relief. The Court of Appeals affirmed. Held: The First and Fourteenth Amendments protect respondents from discharge solely because of their political beliefs. Pp. 513-520. (a) To prevail in this type of action, there is no requirement that dismissed government employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. Rather, it was sufficient for respondents here to prove that they were about to be discharged "solely for the reason that they were not affiliated with or sponsored by the Democratic Party." Elrod v. Burns, 427 U.S. 347, 350, 96 S.Ct. 2673, 2678, 49 L.Ed.2d 547. Pp. 513-517. (b) The issue is not whether the label "policymaker" or "confidential" fits the particular public office in question, but rather whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office. Here, it is manifest that the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government. The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State. Whatever policymaking occurs in his office must relate to individual clients' needs and not to any partisan political interests. Similarly, although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing on partisan political concerns. Under these circumstances, it would undermine, rather than promote, the effective performance of an assistant public defender's office to make his tenure dependent on his allegiance to the dominant political party. Pp. 517-520. 598 F.2d 609, affirmed. Marc L. Parris, New City, N. Y., for petitioner. David MacRae Wagner, Nanuet, N. Y., for respondents. Mr. Justice STEVENS delivered the opinion of the Court. 1 The question presented is whether the First and Fourteenth Amendments to the Constitution protect an assistant public defender who is satisfactorily performing his job from discharge solely because of his political beliefs. 2 Respondents, Aaron Finkel and Alan Tabakman, commenced this action in the United States District Court for the Southern District of New York in order to preserve their positions as assistant public defenders in Rockland County, New York.1 On January 4, 1978, on the basis of a showing that the petitioner public defender was about to discharge them solely because they were Republicans, the District Court entered a temporary restraining order preserving the status quo. After hearing evidence for eight days, the District Court entered detailed findings of fact and permanently enjoined2 petitioner from terminating or attempting to terminate respondents' employment "upon the sole grounds of their political beliefs."3 457 F.Supp. 1284, 1285 (1978). The Court of Appeals affirmed in an unpublished memorandum opinion, judgment order reported at 598 F.2d 609 (CA2 1979) (table). 3 The critical facts can be summarized briefly. The Rockland County Public Defender is appointed by the County Legislature for a term of six years. He in turn appoints nine assistants who serve at his pleasure. The two respondents have served as assistants since their respective appointments in March 1971 and September 1975; they are both Republicans.4 4 Petitioner Branti's predecessor, a Republican, was appointed in 1972 by a Republican-dominated County Legislature. By 1977, control of the legislature had shifted to the Democrats and petitioner, also a Democrat, was appointed to replace the incumbent when his term expired. As soon as petitioner was formally appointed on January 3, 1978, he began executing termination notices for six of the nine assistants then in office. Respondents were among those who were to be terminated. With one possible exception, the nine who were to be appointed or retained were all Democrats and were all selected by Democratic legislators or Democratic town chairmen on a basis that had been determined by the Democratic caucus.5 5 The District Court found that Finkel and Tabakman had been selected for termination solely because they were Republicans and thus did not have the necessary Democratic sponsors: 6 "The sole grounds for the attempted removal of plaintiffs were the facts that plaintiffs' political beliefs differed from those of the ruling Democratic majority in the County Legislature and that the Democratic majority had determined that Assistant Public Defender appointments were to be made on political bases." 457 F.Supp., at 1293. 7 The court rejected petitioner's belated attempt to justify the dismissals on nonpolitical grounds. Noting that both Branti and his predecessor had described respondents as "competent attorneys," the District Court expressly found that both had been "satisfactorily performing their duties as Assistant Public Defenders." Id., at 1292. 8 Having concluded that respondents had been discharged solely because of their political beliefs, the District Court held that those discharges would be permissible under this Court's decision in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547, only if assistant public defenders are the type of policymaking, confidential employees who may be discharged solely on the basis of their political affiliations. The court concluded that respondents clearly did not fall within that category. Although recognizing that they had broad responsibilities with respect to particular cases that were assigned to them, the court found that respondents had "very limited, if any, responsibility" with respect to the overall operation of the public defender's office. They did not "act as advisors or formulate plans for the implementation of the broad goals of the office" and, although they made decisions in the context of specific cases, "they do not make decisions about the orientation and operation of the office in which they work." 457 F.Supp., at 1291. 9 The District Court also rejected the argument that the confidential character of respondents' work justified conditioning their employment on political grounds. The court found that they did not occupy any confidential relationship to the policymaking process, and did not have access to confidential documents that influenced policymaking deliberations. Rather, the only confidential information to which they had access was the product of their attorney-client relationship with the office's clients; to the extent that such information was shared with the public defender, it did not relate to the formulation of office policy. 10 In light of these factual findings, the District Court concluded that petitioner could not terminate respondents' employment as assistant public defenders consistent with the First and Fourteenth Amendments. On appeal, a panel of the Second Circuit, 598 F.2d 609, affirmed, specifically holding that the District Court's findings of fact were adequately supported by the record. That court also expressed "no doubt" that the District Court "was correct in concluding that an assistant public defender was neither a policymaker nor a confidential employee." We granted certiorari, 443 U.S. 904, 99 S.Ct. 3095, 61 L.Ed.2d 871, and now affirm. 11 Petitioner advances two principal arguments for reversal:6 First, that the holding in Elrod v. Burns is limited to situations in which government employees are coerced into pledging allegiance to a political party that they would not voluntarily support and does not apply to a simple requirement that an employee be sponsored by the party in power; and, second, that, even if party sponsorship is an unconstitutional condition of continued public employment for clerks, deputies, and janitors, it is an acceptable requirement for an assistant public defender. 12 * In Elrod v. Burns the Court held that the newly elected Democratic Sheriff of Cook County, Ill., had violated the constitutional rights of certain non-civil-service employees by discharging them "because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders." 427 U.S., at 351, 96 S.Ct., at 2679. That holding was supported by two separate opinions. 13 Writing for the plurality, Mr. Justice BRENNAN identified two separate but interrelated reasons supporting the conclusion that the discharges were prohibited by the First and Fourteenth Amendments. First, he analyzed the impact of a political patronage system7 on freedom of belief and association. Noting that in order to retain their jobs, the Sheriff's employees were required to pledge their allegiance to the Democratic Party, work for or contribute to the party's candidates, or obtain a Democratic sponsor, he concluded that the inevitable tendency of such a system was to coerce employees into compromising their true beliefs.8 That conclusion, in his opinion, brought the practice within the rule of cases like Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, condemning the use of governmental power to prescribe what the citizenry must accept as orthodox opinion.9 14 Second, apart from the potential impact of patronage dismissals on the formation and expression of opinion, Mr. Justice BRENNAN also stated that the practice had the effect of imposing an unconstitutional condition on the receipt of a public benefit and therefore came within the rule of cases likePerry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. In support of the holding in Perry that even an employee with no contractual right to retain his job cannot be dismissed for engaging in constitutionally protected speech, the Court had stated: 15 "For at least a quarter-century, this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a result which [it] could not command directly.' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible. 16 * * * * * 17 "Thus, the respondent's lack of a contractual or tenure 'right' to re-employment for the 1969-1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the nonrenewal of a nontenured public school teacher's one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights. Shelton v. Tucker [364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231]; Keyishian v. Board of Regents [385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629]. We reaffirm those holdings here." Id., at 597-598, 92 S.Ct., at 2697-2698. 18 If the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes.10 Under this line of analysis, unless the government can demonstrate "an overriding interest," 427 U.S., at 368, 96 S.Ct., at 2687, "of vital importance," id., at 362, 96 S.Ct., at 2684, requiring that a person's private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment. 19 Mr. Justice STEWART's opinion concurring in the judgment avoided comment on the first branch of Mr. Justice BRENNAN's analysis, but expressly relied on the same passage from Perry v. Sindermann that is quoted above. 20 Petitioner argues that Elrod v. Burns should be read to prohibit only dismissals resulting from an employee's failure to capitulate to political coercion. Thus, he argues that, so long as an employee is not asked to change his political affiliation or to contribute to or work for the party's candidates, he may be dismissed with impunity—even though he would not have been dismissed if he had had the proper political sponsorship and even though the sole reason for dismissing him was to replace him with a person who did have such sponsorship. Such an interpretation would surely emasculate the principles set forth in Elrod. While it would perhaps eliminate the more blatant forms of coercion described in Elrod, it would not eliminate the coercion of belief that necessarily flows from the knowledge that one must have a sponsor in the dominant party in order to retain one's job.11 More importantly, petitioner's interpretation would require the Court to repudiate entirely the conclusion of both Mr. Justice BRENNAN and Mr. Justice STEWART that the First Amendment prohibits the dismissal of a public employee solely because of his private political beliefs. 21 In sum, there is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged "solely for the reason that they were not affiliated with or sponsored by the Democratic Party." 427 U.S., at 350, 96 S.Ct., at 2678. II 22 Both opinions in Elrod recognize that party affiliation may be an acceptable requirement for some types of government employment. Thus, if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency. Id., at 366, 96 S.Ct., at 2686. In Elrod, it was clear that the duties of the employees—the chief deputy of the process division of the sheriff's office, a process server and another employee in that office, and a bailiff and security guard at the Juvenile Court of Cook County—were not of that character, for they were, as Mr. Justice STEWART stated, "nonpolicymaking, nonconfidential" employees. Id., at 375, 96 S.Ct., at 2690.12 23 As Mr. Justice BRENNAN noted in Elrod, it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered. Id., at 367, 96 S.Ct., at 2686. Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character. As one obvious example, if a State's election laws require that precincts be supervised by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration. That conclusion would not depend on any finding that the job involved participation in policy decisions or access to confidential information. Rather, it would simply rest on the fact that party membership was essential to the discharge of the employee's governmental responsibilities. 24 It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university's football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. 25 Having thus framed the issue, it is manifest that the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government. The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State.13 As we recently observed in commenting on the duties of counsel appointed to represent indigent defendants in federal criminal proceedings: 26 "[T]he primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the government and to oppose it in adversary litigation." Ferri v. Ackerman, 444 U.S. 193, 204, 100 S.Ct. 402, 409, 62 L.Ed.2d 355. 27 Thus, whatever policymaking occurs in the public defender's office must relate to the needs of individual clients and not to any partisan political interests. Similarly, although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing whatsoever on partisan political concerns. Under these circumstances, it would undermine, rather than promote, the effective performance of an assistant public defender's office to make his tenure dependent on his allegiance to the dominant political party.14 28 Accordingly, the entry of an injunction against termination of respondents' employment on purely political grounds was appropriate and the judgment of the Court of Appeals is 29 Affirmed. 30 Mr. Justice STEWART, dissenting. 31 I joined the judgment of the Court in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547, because it is my view that, under the First and Fourteenth Amendments, "a nonpolicymaking, nonconfidential government employee can[not] be discharged . . . from a job that he is satisfactorily performing upon the sole ground of his political beliefs." Id., at 375, 96 S.Ct., at 2690. That judgment in my opinion does not control the present case for the simple reason that the respondents here clearly are not "nonconfidential" employees. 32 The respondents in the present case are lawyers, and the employment positions involved are those of assistants in the office of the Rockland County Public Defender. The analogy to a firm of lawyers in the private sector is a close one, and I can think of few occupational relationships more instinct with the necessity of mutual confidence and trust than that kind of professional association. 33 I believe that the petitioner, upon his appointment as Public Defender, was not constitutionally compelled to enter such a close professional and necessarily confidential association with the respondents if he did not wish to do so.* 34 Mr. Justice POWELL with whom Mr. Justice REHNQUIST joins, and with whom Mr. Justice STEWART joins as to Part I, dissenting. 35 The Court today continues the evisceration of patronage practices begun in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). With scarcely a glance at almost 200 years of American political tradition, the Court further limits the relevance of political affiliation to the selection and retention of public employees. Many public positions previously filled on the basis of membership in national political parties now must be staffed in accordance with a constitutionalized civil service standard that will affect the employment practices of federal, state, and local governments. Governmental hiring practices long thought to be a matter of legislative and executive discretion now will be subjected to judicial oversight. Today's decision is an exercise of judicial lawmaking that, as THE CHIEF JUSTICE wrote in his Elrod dissent, "represents a significant intrusion into the area of legislative and policy concerns." Id., at 375, 96 S.Ct., at 2690. I dissent. 36 * The Court contends that its holding is compelled by the First Amendment. In reaching this conclusion, the Court largely ignores the substantial governmental interests served by patronage. Patronage is a long-accepted practice1 that never has been eliminated totally by civil service laws and regulations. The flaw in the Court's opinion lies not only in its application of First Amendment principles, see Parts II-IV, infra, but also in its promulgation of a new, and substantially expanded, standard for determining which governmental employees may be retained or dismissed on the basis of political affiliation.2 37 In Elrod v. Burns, three Members of the Court joined a plurality opinion concluding that nonpolicymaking employees could not be dismissed on the basis of political affiliation. 427 U.S., at 367, 96 S.Ct., at 2686 (opinion of BRENNAN, J., with whom WHITE and MARSHALL, JJ., joined). Two Members of the Court joined an opinion concurring in the judgment and stating that nonpolicymaking, nonconfidential employees could not be so dismissed. Id., at 375, 96 S.Ct., at 2690 (opinion of STEWART, J., with whom BLACKMUN, J., joined). Notwithstanding its purported reliance upon the holding of Elrod, ante, at 512, n. 6, the Court today ignores the limitations inherent in both views. The Court rejects the limited role for patronage recognized in the plurality opinion by holding that not all policymakers may be dismissed because of political affiliation. Ante, at 518-520. And the Court refuses to allow confidential employees to be dismissed for partisan reasons. Ante, at 520, n. 14; see ante, p. 520 (STEWART, J., dissenting). The broad, new standard is articulated as follows: 38 "[T]he ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Ante, at 518. 39 The Court gives three examples to illustrate the standard. Election judges and certain executive assistants may be chosen on the basis of political affiliation; college football coaches may not. Ibid.3 And the Court decides in this case that party affiliation is not an appropriate requirement for selection of the attorneys in a public defender's office because "whatever policymaking occurs in the public defender's office must relate to the needs of individual clients and not to any partisan political interests." Ante, at 519. 40 The standard articulated by the Court is framed in vague and sweeping language certain to create vast uncertainty. Elected and appointed officials at all levels who now receive guidance from civil service laws, no longer will know when political affiliation is an appropriate consideration in filling a position. Legislative bodies will not be certain whether they have the final authority to make the delicate line-drawing decisions embodied in the civil service laws. Prudent individuals requested to accept a public appointment must consider whether their predecessors will threaten to oust them through legal action. 41 One example at the national level illustrates the nature and magnitude of the problem created by today's holding. The President customarily has considered political affiliation in removing and appointing United States attorneys. Given the critical role that these key law enforcement officials play in the administration of the Department of Justice, both Democratic and Republican Attorneys General have concluded, not surprisingly, that they must have the confidence and support of the United States attorneys. And political affiliation has been used as one indicator of loyalty.4 42 Yet, it would be difficult to say, under the Court's standard, that "partisan" concerns properly are relevant to the performance of the duties of a United States attorney. This Court has noted that " '[t]he office of public prosecutor is one which must be administered with courage and independence.' " Imbler v. Pachtman, 424 U.S. 409, 423, 96 S.Ct. 984, 991-992, 47 L.Ed.2d 128 (1976), quoting Pearson v. Reed, 6 Cal.App.2d 277, 287, 44 P.2d 592, 597 (1935). Nevertheless, I believe that the President must have the right to consider political affiliation when he selects top ranking Department of Justice officials. The President and his Attorney General, not this Court, are charged with the responsibility for enforcing the laws and administering the Department of Justice. The Court's vague, overbroad decision may cast serious doubt on the propriety of dismissing United States attorneys, as well as thousands of other policymaking employees at all levels of government, because of their membership in a national political party.5 43 A constitutional standard that is both uncertain in its application and impervious to legislative change will now control selection and removal of key governmental personnel. Federal judges will now be the final arbiters as to who federal, state and local governments may employ. In my view, the Court is not justified in removing decisions so essential to responsible and efficient governance from the discretion of legislative and executive officials. II 44 The Court errs not only in its selection of a standard, but also more fundamentally in its conclusion that the First Amendment prohibits the use of membership in a national political party as a criterion for the dismissal of public employees.6 In reaching this conclusion, the Court makes new law from inapplicable precedents. The Court suggests that its decision is mandated by the principle that governmental action may not "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . ." Board of Education v. Barnett, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943). The Court also relies upon the decisions in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). Ante, at 514-515; see Elrod v. Burns, 427 U.S., at 358-359, 96 S.Ct., at 2682 (opinion of BRENNAN, J.). But the propriety of patronage was neither questioned nor addressed in those cases. 45 Both Keyishian and Perry involved faculty members who were dismissed from state educational institutions because of their political views.7 In Keyishian, the Court reviewed a state statute that permitted dismissals of faculty members from state institutions for "treasonable or seditious" utterances or acts. The Court noted that academic freedom is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." 385 U.S., at 603, 87 S.Ct., at 683. Because of the ambiguity in the statutory language, the Court held that the law was unconstitutionally vague. The Court also held that membership in the Communist Party could not automatically disqualify a person from holding a faculty position in a state university. Id., at 606, 87 S.Ct., at 685. In Perry, the Court held that the Board of Regents of a state university system could not discharge a professor in retaliation for his exercise of free speech. 408 U.S., at 598, 92 S.Ct., at 2698. In neither case did the State suggest that the governmental positions traditionally had been regarded as patronage positions. Thus, the Court correctly held that no substantial state interest justified the infringement of free speech. This case presents a question quite different from that in Keyishian and Perry. 46 The constitutionality of appointing or dismissing public employees on the basis of political affiliation depends upon the governmental interests served by patronage. No constitutional violation exists if patronage practices further sufficiently important interests to justify tangential burdening of First Amendment rights. See Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976). This inquiry cannot be resolved by reference to First Amendment cases in which patronage was neither involved nor discussed. Nor can the question in this case be answered in a principled manner without identifying and weighing the governmental interest served by patronage. III 47 Patronage appointments help build stable political parties by offering rewards to persons who assume the tasks necessary to the continued functioning of political organizations. "As all parties are concerned with power they naturally operate by placing members and supporters into positions of power. Thus there is nothing derogatory in saying that a primary function of parties is patronage." J. Jupp, Political Parties 25-26 (1968). The benefits of patronage to a political organization do not derive merely from filling policymaking positions on the basis of political affiliation. Many, if not most, of the jobs filled by patronage at the local level may not involve policymaking functions.8 The use of patronage to fill such positions builds party loyalty and avoids "splintered parties and unrestrained factionalism [that might] do significant damage to the fabric of government." Storer v. Brown, 415 U.S. 724, 736, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974). 48 Until today, I would have believed that the importance of political parties was self-evident. Political parties, dependent in many ways upon patronage, serve a variety of substantial governmental interests. A party organization allows political candidates to muster donations of time and money necessary to capture the attention of the electorate. Particularly in a time of growing reliance upon expensive television advertisements, a candidate who is neither independently wealthy nor capable of attracting substantial contributions must rely upon party workers to bring his message to the voters.9 In contests for less visible offices, a candidate may have no efficient method of appealing to the voters unless he enlists the efforts of persons who seek reward through the patronage system. Insofar as the Court's decision today limits the ability of candidates to present their views to the electorate, our democratic process surely is weakened.10 49 Strong political parties also aid effective governance after election campaigns end. Elected officials depend upon appointees who hold similar views to carry out their policies and administer their programs. Patronage—the right to select key personnel and to reward the party "faithful"—serves the public interest by facilitating the implementation of policies endorsed by the electorate.11 The Court's opinion casts a shadow over this time-honored element of our system. It appears to recognize that the implementation of policy is a legitimate goal of the patronage system and that some, but not all, policymaking employees may be replaced on the basis of their political affiliation. Ante, at 1295.12 But the Court does not recognize that the implementation of policy often depends upon the cooperation of public employees who do not hold policymaking posts. As one commentator has written: "What the Court forgets is that, if government is to work, policy implementation is just as important as policymaking. No matter how wise the chief, he has to have the right Indians to transform his ideas into action, to get the job done."13 The growth of the civil service system already has limited the ability of elected politicians to effect political change. Public employees immune to public pressure "can resist changes in policy without suffering either the loss of their jobs or a cut in their salary."14 Such effects are proper when they follow from legislative or executive decisions to withhold some jobs from the patronage system. But the Court tips the balance between patronage and nonpatronage positions, and, in my view, imposes unnecessary constraints upon the ability of responsible officials to govern effectively and to carry out new policies. 50 Although the Executive and Legislative Branches of Government are independent as a matter of constitutional law, effective government is impossible unless the two Branches cooperate to make and enforce laws. Over the decades of our national history, political parties have furthered—if not assured—a measure of cooperation between the Executive and Legislative Branches. A strong party allows an elected executive to implement his programs and policies by working with legislators of the same political organization. But legislators who owe little to their party tend to act independently of its leadership. The result is a dispersion of political influence that may inhibit a political party from enacting its programs into law.15 The failure to sustain party discipline, at least at the national level, has been traced to the inability of successful political parties to offer patronage positions to their members or to the supporters of elected officials.16 51 The breakdown of party discipline that handicaps elected officials also limits the ability of the electorate to choose wisely among candidates. Voters with little information about individuals seeking office traditionally have relied upon party affiliation as a guide to choosing among candidates. With the decline in party stability, voters are less able to blame or credit a party for the performance of its elected officials. Our national party system is predicated upon the assumption that political parties sponsor, and are responsible for, the performance of the persons they nominate for office.17 52 In sum, the effect of the Court's decision will be to decrease the accountability and denigrate the role of our national political parties. This decision comes at a time when an increasing number of observers question whether our national political parties can continue to operate effectively.18 Broad-based political parties supply an essential coherence and flexibility to the American political scene. They serve as coalitions of different interest that combine to seek national goals. The decline of party strength inevitably will enhance the influence of special interest groups whose only concern all too often is how a political candidate votes on a single issue. The quality of political debate, and indeed the capacity of government to function in the national interest, suffer when candidates and officeholders are forced to be more responsive to the narrow concerns of unrepresentative special interest groups than to overarching issues of domestic and foreign policy. The Court ignores the substantial governmental interests served by reasonable patronage. In my view, its decision will seriously hamper the functioning of stable political parties. IV 53 The facts of this case also demonstrate that the Court's decision well may impair the right of local voters to structure their government. Consideration of the form of local government in Rockland County, N.Y., demonstrates the anti-democratic effect of the Court's decision. 54 The voters of the county elect a legislative body. Among the responsibilities that the voters give to the legislature is the selection of a county public defender. In 1972, when the county voters elected a Republican majority in the legislature, a Republican was selected as public defender. The public defender retained one respondent and appointed the other as assistant public defenders. Not surprisingly, both respondents are Republicans. In 1976, the voters elected a majority of Democrats to the legislature. The Democratic majority, in turn, selected a Democratic Public Defender who replaced both respondents with Assistant Public Defenders approved by the Democratic legislators. Ante, at 509-510, and n. 5. 55 The voters of Rockland County are free to elect their public defender and assistant public defenders instead of delegating their selection to elected and appointed officials.19 Certainly the Court's holding today would not preclude the voters, the ultimate "hiring authority," from choosing both public defenders and their assistants by party membership. The voters' choice of public officials on the basis of political affiliation is not yet viewed as an inhibition of speech; it is democracy. Nor may any incumbent contend seriously that the voters' decision not to re-elect him because of his political views is an impermissible infringement upon his right of free speech or affiliation. In other words, the operation of democratic government depends upon the selection of elected officials on precisely the basis rejected by the Court today. 56 Although the voters of Rockland County could have elected both the public defender and his assistants, they have given their legislators a representative proxy to appoint the public defender. And they have delegated to the public defender the power to choose his assistants. Presumably the voters have adopted this course in order to facilitate more effective representative government. Of course, the voters could have instituted a civil service system that would preclude the selection of either the public defender or his assistants on the basis of political affiliation. But the continuation of the present system reflects the electorate's decision to select certain public employees on the basis of political affiliation. 57 The Court's decision today thus limits the ability of the voters of a county to structure their democratic government in the way that they please. Now those voters must elect both the public defender and his assistants if they are to fill governmental positions on a partisan basis.20 Because voters certainly may elect governmental officials on the basis of party ties, it is difficult to perceive a constitutional reason for prohibiting them from delegating that same authority to legislators and appointed officials. V 58 The benefits of political patronage and the freedom of voters to structure their representative government are substantial governmental interests that justify the selection of the assistant public defenders of Rockland County on the basis of political affiliation. The decision to place certain governmental positions within a civil service system is a sensitive political judgment that should be left to the voters and to elected representatives of the people. But the Court's constitutional holding today displaces political responsibility with judicial fiat. In my view, the First Amendment does not incorporate a national civil service system. I would reverse the judgment of the Court of Appeals. 1 Jurisdiction was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). 2 Pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, the plenary trial was consolidated with the hearing on the application for a preliminary injunction. 3 The District Court explained that its ruling required petitioner to retain respondents in their prior positions, with full privileges as employees: "[C]ompliance with the judgment to be entered herein will require defendant both to permit plaintiffs to work as Assistants and to pay them the normal Assistant's salary. Mere payment of plaintiffs' salary will not constitute full compliance with the judgment entered herein; for plaintiffs' constitutional right, which is upheld herein, is the right not to be dismissed from public employment upon the sole ground of their political beliefs. Defendant cannot infringe that right of plaintiffs with impunity by the mere expedient of paying plaintiffs a sum of money." 457 F.Supp. 1284, 1285-1286, n. 4 (1978). 4 The District Court noted that Finkel had changed his party registration from Republican to Democrat in 1977 in the apparent hope that such action would enhance his chances of being reappointed as an assistant when a new, Democratic public defender was appointed. The court concluded that, despite Finkel's formal change of party registration, the parties had regarded him as a Republican at all relevant times. Id., at 1285, n. 2. 5 "An examination of the selection process that was employed in arriving at the name of each of the nine 1978 appointees shows that the hiring decisions were, for all practical purposes, made by Democratic legislators or chairpersons in accordance with the procedures that had been decided upon by the Democratic caucus, and, with respect to every selection save that of Sanchez, those procedures excluded from consideration candidates who were affiliated with a party other than the Democratic Party. Moreover, the evidence shows that the only reason for which Branti sought to terminate plaintiffs as Assistants was that they were not recommended or sponsored pursuant to the procedures that had been decided upon by the Democratic caucus." Id., at 1288. 6 Petitioner also makes two other arguments. First, he contends that the action should have been dismissed because the evidence showed that he would have discharged respondents in any event due to their lack of competence as public defenders. See, Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471. The Court of Appeals correctly held this contention foreclosed by the District Court's findings of fact, which it found to be adequately supported by the record. In view of our settled practice of accepting, absent the most exceptional circumstances, factual determinations in which the district court and the court of appeals have concurred, we decline to review these and other findings of fact petitioner argues were clearly erroneous. See Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672; United States v. Ceccolini, 435 U.S. 268, 273, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268. Second, relying on testimony that an assistant's term in office automatically expires when the public defender's term expires, petitioner argues that we should treat this case as involving a "failure to reappoint" rather than a dismissal and, as a result, should apply a less stringent standard. Petitioner argues that because respondents knew the system was a patronage system when they were hired, they did not have a reasonable expectation of being rehired when control of the office shifted to the Democratic Party. A similar waiver argument was rejected in Elrod v. Burns, 427 U.S. 347, 360, n. 13, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547; see also id., at 380, 96 S.Ct., at 2692 (POWELL, J., dissenting). After Elrod, it is clear that the lack of a reasonable expectation of continued employment is not sufficient to justify a dismissal based solely on an employee's private political beliefs. Unlike Mr. Justice POWELL in dissent, post, at 526-532, petitioner does not ask us to reconsider the holding in Elrod. 7 Mr. Justice BRENNAN noted that many other practices are included within the definition of a patronage system, including placing supporters in government jobs not made available by political discharges, granting supporters lucrative government contracts, and giving favored wards improved public services. In that case, as in this, however, the only practice at issue was the dismissal of public employees for partisan reasons. 427 U.S., at 353, 96 S.Ct., at 2679; id., at 374, 96 S.Ct., at 2690 (opinion of STEWART, J.). In light of the limited nature of the question presented, we have no occasion to address petitioner's argument that there is a compelling governmental interest in maintaining a political sponsorship system for filling vacancies in the public defender's office. 8 "An individual who is a member of the out-party maintains affiliation with his own party at the risk of losing his job. He works for the election of his party's candidates and espouses its policies at the same risk. The financial and campaign assistance that he is induced to provide to another party furthers the advancement of that party's policies to the detriment of his party's views and ultimately his own beliefs, and any assessment of his salary is tantamount to coerced belief. See Buckley v. Valeo, 424 U.S. 1, 19, 96 S.Ct. 612, 634-635, 46 L.Ed.2d 659 (1976). Even a pledge of allegiance to another party, however ostensible, only serves to compromise the individual's true belief. Since the average public employee is hardly in the financial position to support his party and another, or to lend his time to two parties, the individual's ability to act according to his beliefs and to associate with others of his political persuasion is constrained, and support for his party is diminished." Id., at 355-356, 96 S.Ct., at 2681. Mr. Justice BRENNAN also indicated that a patronage system may affect freedom of belief more indirectly, by distorting the electoral process. Given the increasingly pervasive character of government employment, he concluded that the power to starve political opposition by commanding partisan support, financial and otherwise, may have a significant impact on the formation and expression of political beliefs. 9 "Regardless of the nature of the inducement, whether it be by the denial of public employment, or as in Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), by the influence of a teacher over students, '[i]f there is any fixed star in our constitutional constellation, it is that no official high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.' Id., 319 U.S., at 642, 63 S.Ct., at 1187." Id., at 356, 96 S.Ct., at 2681. 10 "The Court recognized in United Public Workers v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 569, 91 L.Ed. 754 (1947), that 'Congress may not "enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office. . . ." ' This principle was reaffirmed in Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), which held that a State could not require its employees to establish their loyalty by extracting an oath denying past affiliation with Communists. And in Cafeteria Workers v. McElroy, 367 U.S. 886, 898, 81 S.Ct. 1743, 1750, 6 L.Ed.2d 1230 (1961), the Court recognized again that the government could not deny employment because of previous membership in a particular party." Id., at 357-358, 96 S.Ct., at 2682. 11 As Mr. Justice BRENNAN pointed out in Elrod, political sponsorship is often purchased at the price of political contributions or campaign work in addition to a simple declaration of allegiance to the party. Id., at 355, 96 S.Ct., at 2680. Thus, an employee's realization that he must obtain a sponsor in order to retain his job is very likely to lead to the same type of coercion as that described by the plurality in Elrod. While there was apparently no overt political pressure exerted on respondents in this case, the potentially coercive effect of requiring sponsorship was demonstrated by Mr. Finkel's change of party registration in a futile attempt to retain his position. See n. 4, supra. 12 The plurality emphasized that patronage dismissals could be justified only if they advanced a governmental, rather than a partisan, interest. 427 U.S., at 362, 96 S.Ct., at 2684. That standard clearly was not met to the extent that employees were expected to perform extracurricular activities for the party, or were being rewarded for past services to the party. Government funds, which are collected from taxpayers of all parties on a nonpolitical basis cannot be expended for the benefit of one political party simply because that party has control of the government. The compensation of government employees, like the distribution of other public benefits, must be justified by a governmental purpose. The Sheriff argued that his employees' political beliefs did have a bearing on the official duties they were required to perform because political loyalty was necessary to the continued efficiency of the office. But after noting the tenuous link between political loyalty and efficiency where process servers and clerks were concerned, the plurality held that any small gain in efficiency did not outweigh the employees' First Amendment rights. Id., at 366, 96 S.Ct., at 2686. 13 This is in contrast to the broader public responsibilities of an official such as a prosecutor. We express no opinion as to whether the deputy of such an official could be dismissed on grounds of political party affiliation or loyalty. Cf. Newcomb v. Brennan, 558 F.2d 825 (CA7 1977), cert. denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455 (dismissal of deputy city attorney). 14 As the District Court observed at the end of its opinion, it is difficult to formulate any justification for tying either the selection or retention of an assistant public defender to his party affiliation: "Perhaps not squarely presented in this action, but deeply disturbing nonetheless, is the question of the propriety of political considerations entering into the selection of attorneys to serve in the sensitive positions of Assistant Public Defenders. By what rationale can it even be suggested that it is legitimate to consider, in the selection process, the politics of one who is to represent indigent defendants accused of crime? No 'compelling state interest' can be served by insisting that those who represent such defendants publicly profess to be Democrats (or Republicans)." 457 F.Supp., at 1293, n. 13. In his brief petitioner attempts to justify the discharges in this case on the ground that he needs to have absolute confidence in the loyalty of his subordinates. In his dissenting opinion, Mr. Justice STEWART makes the same point, relying on an "analogy to a firm of lawyers in the private sector." Post, at 521. We cannot accept the proposition, however, that there cannot be "mutual confidence and trust" between attorneys, whether public defenders or private practitioners, unless they are both of the same political party. To the extent that petitioner lacks confidence in the assistants he has inherited from the prior administration for some reason other than their political affiliations, he is, of course, free to discharge them. * Contrary to repeated statements in the Court's opinion, the present case does not involve "private political beliefs," but public affiliation with a political party. 1 When Thomas Jefferson became the first Chief Executive to succeed a President of the opposing party, he made substantial use of appointment and removal powers. Andrew Jackson, the next President to follow an antagonistic administration, used patronage extensively when he took office. The use of patronage in the early days of our Republic played an important role in democratizing American politics. Elrod v. Burns, 427 U.S., at 378-379, 96 S.Ct., at 2691-2692 (POWELL, J., dissenting). President Lincoln's patronage practices and his reliance upon the newly formed Republican Party enabled him to build support for his national policies during the Civil War. See E. McKitrick, Party Politics and the Union and Confederate War Efforts, in The American Party System 117, 131-133 (W. Chambers & W. Burnham eds. 1967). Subsequent patronage reform efforts were "concerned primarily with the corruption and inefficiency that patronage was thought to induce in civil service and the power that patronage practices were thought to give the 'professional' politicians who relied on them." Elrod v. Burns, 427 U.S., at 379, 96 S.Ct., at 2692 (POWELL, J., dissenting). As a result of these efforts, most federal and state civil service employment was placed on a nonpatronage basis. Ibid. A significant segment of public employment has remained, however, free from civil service constraints. 2 The Court purports to limit the issue in this case to the dismissal of public employees. See ante, at 513, n. 7. Yet the Court also states that "it is difficult to formulate any justification for tying either the selection or retention of an assistant public defender to his party affiliation." Ante, at 520, n. 14. If this latter statement is not a holding of the Court, it at least suggests that the Court perceives no constitutional distinction between selection and dismissal of public employees. 3 The rationale for the Court's conclusion that election judges may be partisan appointments is not readily apparent. The Court states that "if a State's election laws require that precincts be supervised by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration." Ante, at 518. If the mere presence of a state law mandating political affiliation as a requirement for public employment were sufficient, then the Legislature of Rockland County could reverse the result of this case merely by passing a law mandating that political affiliation be considered when a public defender chooses his assistants. Moreover, it is not apparent that a State could demonstrate, under the standard approved today, that only a political partisan is qualified to be an impartial election judge. 4 See Lemann, The Case for Political Patronage, The Washington Monthly, Dec. 1977, p. 8. 5 The Court notes that prosecutors hold "broader public responsibilities" than public defenders. Ante, at 519, n. 13. The Court does not suggest, however, that breadth of responsibility correlates with the appropriateness of political affiliation as a requirement for public employment. Indeed, such a contention would appear to be inconsistent with the Court's assertion that the "ultimate inquiry is not whether the label 'POLICYMAKER' . . . FITS A PARTICULAR POSITIOn . . . ." ante, at 518. I do not suggest that the Constitution requires a patronage system. Civil service systems have been designed to eliminate corruption and inefficiency not to protect the political beliefs of public employees. Indeed, merit selection systems often impose restrictions on political activities by public employees. D. Rosenbloom, Federal Service and the Constitution: The Development of the Public Employment Relationship 83-86 (1971); see CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). Of course, civil service systems further important governmental goals, including continuity in the operation of government. A strength of our system has been the blend of civil service and patronage appointments, subject always to oversight and change by the legislative branches of government. 6 In my Elrod dissent, I suggested that public employees who lose positions obtained through their participation in the patronage system have not suffered a loss of First Amendment rights. 427 U.S., at 380-381, 96 S.Ct., at 2692-2693. Such employees assumed the risks of the system and were benefited, not penalized, by its practical operation. But the Court bases its holding on the First Amendment and accordingly, I consider the constitutional issue. 7 Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), did not involve public employment. In that case, the Court declared that a state statute compelling each public school student to pledge allegiance to the flag violated the First Amendment. Similarly, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), and Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), did not concern governmental attempts to hire or dismiss employees pursuant to an established patronage system. The Court also relies upon United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Ante, at 515, n. 10. In that case, the Court upheld limitations on the political conduct of public employees that far exceeded any burden on First Amendment rights demonstrated in this case. 8 See E. Costikyan, Behind Closed Doors: Politics in the Public Interest 253-254 (1966). 9 Television and radio enable well-financed candidates to go directly into the homes of voters far more effectively then even the most well-organized "political machine." See D. Broder, The Party's Over: The Failure of Politics in America 239-240 (1972). 10 Patronage also attracts persons willing to perform the jobs that enable voters to gain easy access to the electoral process. In some localities, "[t]he parties saw that the polls were open when they should be, and that the voting machines worked." Costikyan, Cities Can Work, Saturday Review, Apr. 4, 1970, pp. 19, 20. At a time when the percentage of Americans who vote is declining steadily, see Statistical Abstract of the United States 516 (1979), the citizen who distributes his party's literature, who helps to register voters, or who transports voters to the polls on Election Day performs a valuable public service. 11 In addition, political parties raise funds, recruit potential candidates, train party workers, provide assistance to voters, and act as a liaison between voters and governmental bureaucracies. Assistance to constituents is a common form of patronage. At the local level, political clubhouses traditionally have helped procure municipal services for constituents who often have little or no other access to public officials. M. Tolchin & S. Tolchin, To The Victor . . . : Political Patronage from the Clubhouse to the White House 19 (1971). Party organizations have been a means of upward mobility for newcomers to the United States and members of minority groups. See Elrod v. Burns, 427 U.S., at 382, 96 S.Ct., at 2694, and n. 6 (POWELL, J., dissenting); S. Lubell, The Future of American Politics 76-77 (1952). 12 The reasoning of the Elrod plurality clearly permitted vestiges of patronage to continue in order to ensure that "representative government not be undercut by tactics obstructing the implementation of policies of the new administration . . . ." 427 U.S., at 367, 96 S.Ct., at 2687. But in view of the Court's new holding that some policymaking positions may not be filled on the basis of political affiliation, ante, at 518, elected officials may find changes in public policy thwarted by policymaking employees protected from replacement by the Constitution. The official with a hostile or foot-dragging subordinate will now be in a difficult position. In order to replace such a subordinate, he must be prepared to prove that the subordinate's "private political beliefs [will] interfere with the discharge of his public duties." Ante, at 517. 13 Peters, A Kind Word for the Spoils System, The Washington Monthly, Sept. 1976, p. 30. 14 Tolchin & Tolchin, supra n. 11, at 72-73. See Costikyan, supra n. 8, at 353-354. 15 Herbers, The Party's Over for the Political Parties, The New York Times Magazine, Dec. 9, 1979, pp. 158, 175. 16 See Costikyan, supra n. 8, at 252-253. 17 In local elections, a candidate's party affiliation may be the most salient information communicated to voters. One study has indicated that affiliation remains the predominant influence on voter choice in low-visibility elections such as contests for positions in the state legislature. See Murray & Vedlitz, Party Voting in Lower-Level Electoral Contests, 59 Soc.Sci.Q. 752, 756 (1979). 18 See, e. g., W. Burnham, The 1976 Election: Has the Crisis Been Adjourned?, in American Politics and Public Policy 1, 19-22 (W. Burnham & M. Weinberg eds. 1978); Broder, supra n. 9; Herbers, supra n. 15, at 159; Pomper, The Decline of the Party in American Elections, 92 Pol.Sci.Q. 21, 40-41 (1977). See also n. 9, supra. 19 In Florida, for example, the local public defender is elected. See Fla.Const., Art. 5, § 18; Fla.Stat. § 27.50 (1979). 20 The Court's description of the policymaking functions of a public defender's office suggests that the public defender may no longer be chosen by the County Legislature on a partisan basis. Ante, at 519-520.

23

445 U.S. 535 100 S.Ct. 1349 63 L.Ed.2d 607 UNITED STATES, Petitioner,v.Helen MITCHELL et al. No. 78-1756. Argued Dec. 3, 1979. Decided April 15, 1980. Rehearing Denied June 2, 1980. See 446 U.S. 992, 100 S.Ct. 2979. Syllabus Section 1 of the Indian General Allotment Act of 1887 authorizes the President to allot to each Indian residing on a reservation specified acreage of agricultural and grazing land within the reservation; § 2 provides that all such allotments shall be selected by the Indians so as to include improvements made by them; and § 5 provides that the United States shall retain title to such allotted lands in trust for the benefit of the allottees. Pursuant to the Act, the Government allotted all of the Quinault Reservation's land in trust to individual Indians. Respondents, individual allottees of land in that Reservation, the Quinault Tribe, which now holds some allotments, and an association of allottees, brought actions, consolidated in the Court of Claims, to recover damages from the Government for alleged mismanagement of timber resources found on the Reservation. Denying the Government's motion to dismiss the actions on the alleged ground that it had not waived its sovereign immunity with respect to the asserted claims, the Court of Claims held that the General Allotment Act created a fiduciary duty on the United States' part to manage the timber resources properly and constituted a waiver of sovereign immunity against a suit for money damages as compensation for breaches of that duty. Held : The General Allotment Act cannot be read as establishing that the United States has a fiduciary responsibility for management of allotted forest lands, and thus does not provide respondents with a cause of action for the damages sought. Pp. 538-546. (a) Neither the Tucker Act, under which the individual claimants premised jurisdiction in the Court of Claims, nor § 24 of the Indian Claims Commission Act, on which jurisdiction over the Tribe's claim was based, confers a substantive right against the United States to recover money damages. Pp. 538-540. (b) The General Allotment Act created only a limited trust relationship between the United States and the allottee that does not impose any duty upon the Government to manage timber resources. The language of § 5 of the Act must be read in pari materia with the language of §§ 1 and 2, both of which indicate that the Indian allottee, and not a representative of the United States, is responsible for using the land for agricultural or grazing purposes. The Act's legislative history also indicates that the trust Congress placed on allotted lands is of limited scope, it appearing that when Congress enacted the Act it intended that the United States hold the lands in trust not because it wished the Government to control use of the lands and be subject to money damages for breaches of fiduciary duty, but simply because it wished to prevent alienation of the lands and to ensure that allottees would be immune from state taxation. Furthermore, certain events surrounding and following the Act's passage indicate that it should not be read as authorizing, much less requiring, the Government to manage timber resources for the benefit of Indian allottees. Pp. 540-546. 219 Ct.Cl. 95, 591 F.2d 1300, reversed and remanded. Louis F. Claiborne, Washington, D. C., for petitioner. Charles A. Hobbs, Washington, D. C., for respondents. Mr. Justice MARSHALL delivered the opinion of the Court. 1 This case presents the question whether the Indian General Allotment Act of 1887 authorizes the award of money damages against the United States for alleged mismanagement of forests located on lands allotted to Indians under that Act. 2 * In 1873, a Reservation was established by Executive Order in the State of Washington for the Quinault Tribe. 1 C. Kappler, Indian Affairs 923 (2d ed. 1904.) Much of the land within the Reservation was forested. By 1935, acting under the authority of the General Allotment Act of 1887, ch. 119, 24 Stat. 388, as amended, 25 U.S.C. § 331 et seq., the Government had allotted all of the Reservation's land in trust to individual Indians. Other enactments of Congress require the Secretary of the Interior to manage these forests, sell the timber, and pay the proceeds of such sales, less administrative expenses, to the allottees.1 3 The respondents are 1,465 individual allottees of land contained in the Quinault Reservation, the Quinault Tribe, which now holds some allotments, and the Quinault Allottees Association, an unincorporated association formed to promote the interests of the allottees of the Quinault Reservation. In four actions consolidated in the Court of Claims, the respondents sought to recover damages from the Government for alleged mismanagement of timber resources found on the Reservation. The respondents asserted that the Government: (1) failed to obtain fair market value for timber sold; (2) failed to manage timber on a sustained-yield basis and to rehabilitate the land after logging; (3) failed to obtain payment for some merchantable timber; (4) failed to develop a proper system of roads and easements for timber operations and exacted improper charges from allottees for roads; (5) failed to pay interest on certain funds and paid insufficient interest on other funds; and (6) exacted excessive administrative charges from allottees. The respondents contended that they were entitled to recover money damages because this alleged misconduct breached a fiduciary duty owed to them by the United States as trustee of the allotted lands under the General Allotment Act. 4 The United States moved to dismiss the respondents' actions on the ground that it had not waived its sovereign immunity with respect to the claims raised. The Court of Claims, sitting en banc, denied the Government's motion. 219 Ct.Cl. 95, 591 F.2d 1300 (1979). Reasoning that Government mismanagement of the kind alleged breaches the Government's fiduciary duty under the General Allotment Act, the court held that the Act provides Indian allottees a cause of action for money damages against the United States. 5 We granted certiorari, 442 U.S. 940, 99 S.Ct. 2880, 61 L.Ed.2d 309 (1979), and now reverse and remand. II 6 It is elementary that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-770, 85 L.Ed. 1058 (1941). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). In the absence of clear congressional consent, then, "there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States." United States v. Sherwood, supra, 312 U.S., at 587-588, 61 S.Ct., at 770. 7 The individual claimants in this action premised jurisdiction in the Court of Claims upon the Tucker Act, 28 U.S.C. § 1491, which gives that court jurisdiction of "any claim against the United States founded either upon the Constitution, or any Act of Congress." The Tucker Act is "only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). The Act merely "confers jurisdiction upon [the Court of Claims] whenever the substantive right exists." Ibid. The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity with respect to their claims. 8 The same is true for the tribal claimant. Jurisdiction over its claims was based on § 24 of the Indian Claims Commission Act, 28 U.S.C. § 1505. That provision states: 9 "The Court of Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Claims if the claimant were not an Indian tribe, band or group." 10 By enacting this statute, Congress plainly intended to give tribal claimants the same access to the Court of Claims provided to individuals by the Tucker Act. The House Committee Report stated: 11 "As respects claims accruing after its adoption this bill confers jurisdiction on the Court of Claims to determine and adjudicate any tribal claim of a character which would be cognizable in the Court of Claims if the claimant were not an Indian tribe. In such cases the claimants are to be entitled to recover in the same manner, to the same extent, and subject to the same conditions and limitations, and the United States shall be entitled to the same defenses, both at law and in equity, . . . as in cases brought in the Court of Claims by non-Indians under section 145 of the Judicial Code [now 28 U.S.C. § 1491], as amended." H.R.Rep.No. 1466, 79th Cong., 1st Sess., 13 (1945). 12 See also Hearings on H.R.1198 and H.R.1341 before the House Committee on Indian Affairs, 79th Cong., 1st Sess., 149 (1945) (statement of Assistant Solicitor Cohen); H.R.Rep.No.352, 81st Cong., 1st Sess., 15-16 (1949) (recodifying the statute). 13 Under 28 U.S.C. § 1505, then, tribal claimants have the same access to the Court of Claims provided to individual claimants by 28 U.S.C. § 1491, and the United States is entitled to the same defenses at law and in equity under both statutes. It follows that 28 U.S.C. § 1505 no more confers a substantive right against the United States to recover money damages than does 28 U.S.C. § 1491.2 III 14 Section 1 of the General Allotment Act authorizes the President to allot to each Indian residing on a reservation up to 80 acres of agricultural land or 160 acres of grazing land found within the reservation. 24 Stat. 388, as amended, 25 U.S.C. § 331. Section 5 of the Act provides that the United States shall retain title to such allotted lands in trust for the benefit of the allottees: 15 "Upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made . . . and that at the expiration of said period the United States will convey the same by patent to said Indian . . ., in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void." 24 Stat. 389, as amended, 25 U.S.C. § 348. 16 Under § 2 of the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. § 462, the United States now holds title to these lands indefinitely. 17 The Court of Claims held that the General Allotment Act creates a fiduciary duty on the part of the United States to manage timber resources properly and constitutes a waiver of sovereign immunity against a suit for money damages as compensation for breaches of that duty. The court drew both of these conclusions from the Act's language providing that the United States is to "hold the land . . . in trust for the sole use and benefit of the" allottee. The court held that this language created an express trust, and concluded that money damages are available to compensate for breaches of this trust, apparently because that remedy is available in the ordinary situation in which a trustee has violated a fiduciary duty and because without money damages allottees would have no effective redress for breaches of trust. 18 We need not consider whether, had Congress actually intended the General Allotment Act to impose upon the Government all fiduciary duties ordinarily placed by equity upon a trustee, the Act would constitute a waiver of sovereign immunity. We conclude that the Act created only a limited trust relationship between the United States and the allottee that does not impose any duty upon the Government to manage timber resources. 19 The Act does not unambiguously provide that the United States has undertaken full fiduciary responsibilities as to the management of allotted lands. The language of § 5 that imposes the trust in question must be read in pari materia with the language of §§ 1 and 2.3 Both of these sections indicate that the Indian allottee, and not a representative of the United States, is responsible for using the land for agricultural or grazing purposes. Furthermore, the legislative history of the Act4 plainly indicates that the trust Congress placed on allotted lands is of limited scope. Congress intended that, even during the period in which title to allotted land would remain in the United States, the allottee would occupy the land as a homestead for his personal use in agriculture or grazing. See Mattz v. Arnett, 412 U.S. 481, 496, 93 S.Ct. 2245, 2253, 37 L.Ed.2d 92 (1973); 13 Cong.Rec. 3211 (1882) (Sen. Dawes) (the allottee is to be "the occupant of the land and enjoy all its use"). See also H.R.Rep.No.2247, 48th Cong., 2d Sess., 1 (1885); 17 Cong.Rec. 1630-1631 (1886) (Sens. Plumb and Dawes); id., at 1632 (Sen. Maxey); 18 Cong.Rec. 190-191 (1886) (Rep. Skinner). Under this scheme, then, the allottee, and not the United States, was to manage the land. 20 The earliest drafts of the Act provided that, during the 25-year period before the allottee would receive fee simple title, the allottee would hold title to the land subject to a restraint on alienation. S. 1773, 46th Cong., 3d Sess. (1880); S. 1455, 47th Cong., 1st Sess. (1882). On Senator Dawes' motion, this language was amended to provide that the United States would hold the land "in trust" for that period. 13 Cong.Rec. 3212 (1882). Senator Dawes explained that the statute as amended would still ensure that title to the land would be transferred to the Indian allottee at the expiration of 25 years. He promoted the amendment because he feared that States might attempt to tax allotted lands if the allottees held title to them subject to a restraint on alienation. By placing title in the United States in trust for the allottee, his amendment made it "impossible to raise the question of [state] taxation." Id., at 3211. The next draft of the Act introduced in the Congress reflected this amendment, see S. 48, 48th Cong., 1st Sess. (1884), as, of course, did the Act as enacted, 24 Stat. 388 (1887). It is plain, then, that when Congress enacted the General Allotment Act, it intended that the United States "hold the land . . . in trust" not because it wished the Government to control use of the land and be subject to money damages for breaches of fiduciary duty, but simply because it wished to prevent alienation of the land and to ensure that allottees would be immune from the state taxation.5 21 Furthermore, events surrounding and following the passage of the General Allotment Act indicate that the Act should not be read as authorizing, much less requiring, the Government to manage timber resources for the benefit of Indian allottees. In 1874, this Court determined that Indians held only a right of occupancy, and not title, to Indian lands, and therefore that they could cut timber for the purpose of clearing the land, but not for the primary purpose of marketing the timber. United States v. Cook, 19 Wall. 591, 22 L.Ed. 210. In 1889, two years after the General Allotment Act was enacted, the Attorney General determined that the rule of United States v. Cook, supra, applied to allotted as well as unallotted lands, unless a statute explicitly provided to the contrary. 19 Op. Atty. Gen. 232. Congress ratified the Attorney General's opinion by enacting a provision authorizing the sale of dead timber on Indian allotments and reservations, but forbidding the sale of live timber. Act of Feb. 16, 1889, ch. 172, 25 Stat. 673. See also Pine River Logging Co. v. United States, 186 U.S. 279, 22 S.Ct. 920, 46 L.Ed. 1164 (1902). 22 As time passed, Congress occasionally passed legislation authorizing the harvesting and sale of timber on specific reservations. See, e. g., ch. 135, 34 Stat. 91 (1906) (Jicarilla Apache Reservation). In 1910, Congress reversed its general policy. It empowered the Secretary of the Interior to sell timber on unallotted lands and apply the proceeds of the sales, less administrative expenses, to the benefit of the Indians. Ch. 431, § 7, 36 Stat. 857, as amended, 25 U.S.C. § 407. The Secretary was also authorized to consent to the sale of timber by the owner of any Indian land "held under a trust or other patent containing restrictions on alienations." Id., § 8, as amended, 25 U.S.C. § 406(a). The Secretary was directed to pay the proceeds of these sales less administrative expenses, to the "owner" of the allotted lands. Ibid. Congress subsequently enacted other legislation directing the Secretary on how to manage Indian timber resources.6 23 The General Allotment Act, then, cannot be read as establishing that the United States has a fiduciary responsibility for management of allotted forest lands. Any right of the respondents to recover money damages for Government mismanagement of timber resources must be found in some source other than that Act.7 24 The judgment of the Court of Claims is reversed, and the case is remanded for further proceedings consistent with this opinion. 25 It is so ordered. 26 THE CHIEF JUSTICE took no part in the decision of this case. 27 Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice STEVENS join, dissenting. 28 In United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), we held that a statute creates a substantive right enforceable against the United States in money damages only if it " 'can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.' " Id., at 400, 96 S.Ct., at 954, quoting Eastport S. S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967). The Court today holds that Testan bars a damages suit against the Government by Indian allottees, their Tribe, and their association for breach of fiduciary duties in the management of timber lands allotted under the General Allotment Act of 1887 (Act), 24 Stat. 388, as amended, 25 U.S.C. § 331 et seq. Because I believe that the Act can fairly be interpreted as mandating compensation, I dissent. 29 The Act could hardly be more explicit as to the status of allotted lands. They are to be held by the United States "in trust for the sole use and benefit of the Indian," § 5 of the Act, 24 Stat. 389, as amended, 25 U.S.C. § 348 (emphasis added). The United States has here unmistakably assumed the obligation to act as trustee of these lands with the Indian allottees as beneficiaries. The Court holds, however, that the "trust" established by § 5 is not a trust as that term is commonly understood, and that Congress had no intention of imposing full fiduciary obligations on the United States. Congress' purposes, it is said, were narrower: to impose a restraint on alienation by Indian allottees while ensuring immunity from state taxation during the period of the restraint. 30 I do not find this argument convincing. The language of the Act, which is the starting point for all statutory interpretation, Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 210, 99 S.Ct. 1067, 1072, 59 L.Ed.2d 261 (1979); Teamsters v. Daniel, 439 U.S. 551, 558, 99 S.Ct. 790, 795, 58 L.Ed.2d 808 (1979), explicitly creates a "trust." This language would surely be a sufficient manifestation of intent to create a trust if the settlor were other than the United States. See Restatement (Second) of Trusts §§ 23, 24 (1959) (hereinafter Restatement); G. Bogert, The Law of Trusts and Trustees § 45 (2d ed. 1965) (hereinafter Bogert); 1 A. Scott, The Law of Trusts § 23 (3d ed. 1967) (hereinafter Scott). The structure created by the Act has all the necessary elements of a common-law trust—a trustee (the United States), a beneficiary (the Indian allottees), and a trust corpus (the designated allotment lands). See Restatement § 2, Comment h, p. 10. The United States has capacity to take and hold property in trust. Id., § 95; 2 Scott § 95 (discussing the Act). And an essential distinguishing feature of any trust, at common law, was that it entailed a 31 "fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person. . . ." Restatement § 2 (emphasis added). 32 See 1 Scott § 2.5. Hence, if we are to give the words of the statute their ordinary meaning, as we commonly do when the law does not define a statutory phrase precisely, Group Life & Health Ins. Co. v. Royal Drug Co., supra, 440 U.S., at 211, 99 S.Ct., at 1073, we should find that the trust established by the Act imposes fiduciary obligations on the United States as trustee. 33 The legislative history of the Act does not convince me that any narrower reading is required. This statute was enacted against the backdrop of a relationship between the United States and the Indian tribes that had long been considered to "resembl[e] that of a word to his guardian." Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L.Ed. 25 (1831); see also Morton v. Mancari, 417 U.S. 535, 541-542, 94 S.Ct. 2474, 2478, 41 L.Ed.2d 290 (1974); United States v. Mason, 412 U.S. 391, 398, 93 S.Ct. 2202, 2207, 37 L.Ed.2d 22 (1973); Squire v. Capoeman, 351 U.S. 1, 2, 76 S.Ct. 611, 613, 100 L.Ed. 883 (1956); United States v. Payne, 264 U.S. 446, 448 (1924); United States v. Kagama, 118 U.S. 375, 382, 6 S.Ct. 1109, 1113, 30 L.Ed. 228 (1886). When Congress established a "trust" for the Indian allottees it is not sensible to assume an intent to depart from these well-known fiduciary principles. Rather, as we noted inMattz v. Arnett, 412 U.S. 481, 496, 93 S.Ct. 2245, 2253, 37 L.Ed.2d 92 (1973), the policy of the Act was to "continue the reservation system and the trust status of Indian lands." (Emphasis added.) The Court acknowledges that the Act did create a trust relationship between the United States and the allottee. Ante, at 542. It holds, however, that the fiduciary obligations imposed on the United States as trustee are very narrow and do not extend to the proper management of Indian timber lands. The lands covered by the Act were mostly agricultural or grazing lands, as to which it was expected that the Indian himself would reside on and manage the allotments. Not until United States v. Payne, supra, was it established that forested lands such as those of the Quinault Reservation were subject to allotment under the Act. Hence, it is said, if the Government has fiduciary duties they are solely to ensure nonalienation and immunity from state taxation. 34 This argument takes too narrow a view of the fiduciary duty established by the Act and of the subsequent statutory and administrative developments which clarified and fleshed out that duty. The timberlands of the Quinault Reservation cannot, as a practical matter, be managed by the Indian allottees. In such a case, where management functions must necessarily be performed by the Government, it seems most consistent with the scheme of the Act that the United States was to assume fiduciary obligations in the performance of its management functions. Subsequent Congresses have implicitly acknowledged the existence of such obligations. See 25 U.S.C. § 466 (instructing the Secretary of the Interior to manage Indian forests on a sustained-yield basis); §§ 323-325 (authorizing the Secretary to grant rights-of-way over Indian trust lands upon payment of just compensation); § 162a (authorizing the Secretary to manage tribal funds held in trust). The Secretary has promulgated detailed regulations governing the exercise of his powers under these statutes. While I do not say that the Government's fiduciary responsibility necessarily conforms to the exact terms of these statutes and regulations, their existence at least points to the inference that as a matter of statute and administrative practice the Government has accepted some obligations in the management of allotted timberlands. 35 The remaining question is whether the Government has consented to liability in damages for the breach of these obligations. Such liability, in my view, follows naturally from the existence of a trust and of fiduciary duties. It is hornbook law that the trustee is accountable in damages for breaches of trust. See Restatement §§ 205-212; Bogert § 862; 3 Scott § 205. Moreover, it would interfere with, if not defeat, the purposes of the Act if the allottees were to be remitted to a suit for prospective, equitable relief in the protection of their rights. Absent a retrospective damages remedy, there would be little to deter federal officials from violating their trust duties, at least until the allottees managed to obtain a judicial decree against future breaches of trust. Finally, it is noteworthy that the Department of the Interior, which as the agency charged with administering the Act is entitled to considerable deference in its interpretation of the statute, e. g., Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), apparently disagrees with the position taken by the Solicitor General in this litigation and believes that a money damages remedy should be permitted. See Letter from Departmental Solicitor Krulitz to Assistant Attorney General Moorman, Nov. 21, 1978, reprinted in App. to Brief for Respondents 1a-21a. 36 In sum, I would find that the Act creates a bona fide trust, imposes fiduciary obligations on the United States as trustee in the management of allotted timberlands, and provides a damages remedy against the United States for breach of these obligations. The Act " 'can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.' " United States v. Testan, 424 U.S., at 400, 96 S.Ct., at 954, quoting Eastport S. S. Corp. v. United States, 178 Ct.Cl., at 607, 372 F.2d, at 1009. In my view, therefore, the Court of Claims had jurisdiction over this action as one founded on an "Act of Congress," 28 U.S.C. § 1491, and as one brought by an identifiable group of Indians and "otherwise . . . cognizable in the Court of Claims," 28 U.S.C. § 1505. Accordingly, I respectfully dissent. 1 Current statutes relevant to the Secretary's responsibilities with respect to Indian timber resources include 25 U.S.C. § 162a (investment of funds of tribe and individual allottee); 25 U.S.C. §§ 318a, 323-325 (roads and rights-of-way); 25 U.S.C. §§ 349, 372 (issuance of fee patents to allottees or heirs found to be capable of managing their affairs); 25 U.S.C. §§ 406, 407 (sale of timber); 25 U.S.C. § 413 (collection of administrative expenses incurred on behalf of Indians); 25 U.S.C. § 466 (sustained-yield management of forests). 2 For claims arising before August 13, 1946, however, the statute did waive the sovereign immunity of the United States. The Indian Claims Commission was directed to "hear and determine" such claims against the United States based on legal and equitable principles and on considerations of "fair and honorable dealings that are not recognized by any existing rule of law or equity." 25 U.S.C. § 70a. Contrary to respondents' assertions, the comments of then-Representative Jackson, the sponsor of the bill that became 28 U.S.C. § 1505, do not indicate that Congress intended this statute to be a waiver of sovereign immunity for any alleged breach of trust accruing after August 13, 1946. Indeed, Representative Jackson stated that "the bill provides that with respect to all grievances that may arise hereafter Indians shall be treated on the same basis as other citizens of the United States in suits before the Court of Claims." 92 Cong.Rec. 5313 (1946). This statement is consistent with his comment that if the bill was adopted "it will never again be necessary to pass special Indian jurisdictional acts in order to permit the Indians to secure a court adjudication on any misappropriations of Indian funds or of any other Indian property by Federal officials that might occur in the future." Ibid. Such misappropriations could constitute takings for which just compensation is required by the Fifth Amendment, and this Court has long held that such a claim is within the jurisdiction of the Court of Claims under 28 U.S.C. § 1491. See United States v. Testan, 424 U.S. 392, 401, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976); United States v. Creek Nation, 295 U.S. 103, 109-110, 55 S.Ct. 681, 683-684, 79 L.Ed. 1331 (1935); Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 27, 78 L.Ed. 142 (1933). 3 As originally enacted, § 1 provided in pertinent part: "[I]n all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, . . . the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon. . . ." 24 Stat. 388. This language has not been materially altered by amendment, and is presently codified as 25 U.S.C. § 331. Section 2 provided in pertinent part: "That all allotments set apart under the provisions of this act shall be selected by the Indians . . . in such manner as to embrace the improvements of the Indians making the selection. Where the improvements of two or more Indians have been made on the same legal subdivision of land, unless they shall otherwise agree, a provisional line may be run dividing said lands between them . . .." 24 Stat. 388. This provision has never been amended, and is presently codified as 25 U.S.C. § 332. 4 A bill similar to the General Allotment Act of 1887 was debated in the Senate in 1881. See S.1773, 46th Cong., 3d Sess. (1880); 11 Cong.Rec. 778-788, 873-882, 904-913, 933-943, 944-1003, 1028-1036, 1060-1070 (1881). Bills essentially identical to the Act as enacted in 1887 were passed by the Senate in 1882 and 1884, but were not acted upon by the House of Representatives. See S. 1455, 47th Cong., 1st Sess. (1882); S. 48, 48th Cong., 1st Sess. (1884). See also 13 Cong.Rec. 3212 (1882); 15 Cong.Rec. 2240-2242, 2277-2280 (1884); 16 Cong.Rec. 218, 580 (1885); H.R.Rep.No.2247, 48th Cong., 2d Sess. (1885). 5 See also 15 Cong.Rec. 2240-2242 (1884) (Sens. Dawes, Coke, and Conger); id., at 2278-2279 (Sens. Miller, Coke, and Dawes). Representative Skinner, who was the sponsor in the House of Representatives for the bill that became the Act, plainly defined the limited nature of the trust language found in § 5 in commenting on the rationale supporting both the Act's allotment of land and its provision that allottees shall be citizens of the United States: "The present Commissioner of Indian Affairs, who, in the line of his duty, has given these questions his most earnest thought, says in his annual report, 1885, and reiterates it in his last report, that it should be impressed upon the Indians 'that they must abandon their tribal relation and take lands in severalty as the corner-stone of their complete success in agriculture. . . .' * * * * * ". . . [W]henever a majority of the male adults on any reservation desire it the reservation can be broken up, and the lands, in certain quantities, specified in the bill, allotted in severalty to the Indians who belong on such reservation; and as soon as the allotment is made the allottee becomes a citizen of the United States, . . . and, in addition thereto, his land is made inalienable and non-taxable for a sufficient length of time for the new citizen to become accustomed to his new life, to learn his rights as a citizen, and prepare himself to cope on an equal footing with any white man who might attempt to cheat him out of his newly acquired property. . . . "Giving the individual Indian a title to the land upon which he resides will have a tendency to stimulate him to work and improve his land and accumulate property. . . ." 18 Cong.Rec. 190 (1886) (emphasis added). Representative Perkins summarized this approach by stating that "[t]he bill provides for the breaking up, as rapidly as possible, of all the tribal organizations and for the allotment of lands to the Indians in severalty, in order that they may possess them individually and proceed to qualify themselves for the duties and responsibilities of citizenship." Id., at 191. He asserted that one object of the bill was to enable Indians "to support themselves by industry and toil." Ibid. 6 See n. 1, supra. 7 The Court of Claims did not consider the respondents' assertion that other statutes, see n. 1, supra, render the United States liable in money damages for the mismanagement alleged in this case. Nor did the court address the respondents' contention that the alleged mismanagement is cognizable under the Tucker Act because it involves money improperly exacted or retained. The court may, of course, consider these contentions on remand. The respondents make two other arguments. They assert that the special relationship between the United States and Indian tribes establishes a right to money damages for timber mismanagement. They also contend that the General Allotment Act and the Treaty of Olympia, 12 Stat. 971 (1859), create trust responsibilities on the part of the United States that constitute implied contracts within the scope of the Tucker Act. Because the respondents did not raise these contentions in the Court of Claims, we will not consider them. E. g., Adickes v. Kress & Co., 398 U.S. 144, 147, n. 2, 90 S.Ct. 1598, 1602, n. 2, 26 L.Ed.2d 142 (1970).

78

445 U.S. 573 100 S.Ct. 1371 63 L.Ed.2d 639 Theodore PAYTON, Applicant,v.NEW YORK. Obie RIDDICK, Applicant, v. NEW YORK. Nos. 78-5420, 78-5421. Argued March 26, 1979. Reargued Oct. 9, 1979. Decided April 15, 1980. Syllabus These appeals challenge the constitutionality of New York statutes authorizing police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest. In each of the appeals, police officers, acting with probable cause but without warrants, had gone to the appellant's residence to arrest the appellant on a felony charge and had entered the premises without the consent of any occupant. In each case, the New York trial judge held that the warrantless entry was authorized by New York statutes and refused to suppress evidence that was seized upon the entry. Treating both cases as involving routine arrests in which there was ample time to obtain a warrant, the New York Court of Appeals, in a single opinion, ultimately affirmed the convictions of both appellants. Held : The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. Pp. 583-603. (a) The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. To be arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home, which is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is present. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. Pp. 583-590. (b) The reasons for upholding warrantless arrests in a public place, cf. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, do not apply to warrantless invasions of the privacy of the home. The common-law rule on warrantless home arrests was not as clear as the rule on arrests in public places; the weight of authority as it appeared to the Framers of the Fourth Amendment was to the effect that a warrant was required for a home arrest, or at the minimum that there were substantial risks in proceeding without one. Although a majority of the States that have taken a position on the question permit warrantless home arrests even in the absence of exigent circumstances, there is an obvious declining trend, and there is by no means the kind of virtual unanimity on this question that was present in United States v. Watson, supra, with regard to warrantless public arrests. And, unlike the situation in Watson no federal statutes have been cited to indicate any congressional determination that warrantless entries into the home are "reasonable." Pp. 590-601. (c) For Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Pp. 602-603. 45 N.Y.2d 300, 408 N.Y.S.2d 395, 380 N.E.2d 224, reversed and remanded. William E. Hellerstein, New York City, for appellant in both cases. Peter L. Zimroth, New York City, for appellee in both cases. Mr. Justice STEVENS delivered the opinion of the Court. 1 These appeals challenge the constitutionality of New York statutes that authorize police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest. 2 The important constitutional question presented by this challenge has been expressly left open in a number of our prior opinions. In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, we upheld a warrantless "midday public arrest," expressly noting that the case did not pose "the still unsettled question . . . 'whether and under what circumstances an officer may enter a suspect's home to make a warrantless arrest.' " Id., at 418, n. 6, 96 S.Ct., at 825, n. 6.1 The question has been answered in different ways by other appellate courts. The Supreme Court of Florida rejected the constitutional attack,2 as did the New York Court of Appeals, 45 N.Y.2d 300, 408 N.Y.S.2d 395, 380 N.E.2d 224 in this case. The courts of last resort in 10 other States, however, have held that unless special circumstances are present, warrantless arrests in the home are unconstitutional.3 Of the seven United States Courts of Appeals that have considered the question, five have expressed the opinion that such arrests are unconstitutional.4 3 Last Term we noted probable jurisdiction of these appeals in order to address that question. 439 U.S. 1044, 99 S.Ct. 718, 58 L.Ed.2d 703. After hearing oral argument, we set the case for reargument this Term. 441 U.S. 930, 99 S.Ct. 2049, 60 L.Ed.2d 658. We now reverse the New York Court of Appeals and hold that the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. 4 We first state the facts of both cases in some detail and put to one side certain related questions that are not presented by these records. We then explain why the New York statutes are not consistent with the Fourth Amendment and why the reasons for upholding warrantless arrests in a public place do not apply to warrantless invasions of the privacy of the home. 5 * On January 14, 1970, after two days of intensive investigation, New York detectives had assembled evidence sufficient to establish probable cause to believe that Theodore Payton had murdered the manager of a gas station two days earlier. At about 7:30 a. m. on January 15, six officers went to Payton's apartment in the Bronx, intending to arrest him. They had not obtained a warrant. Although light and music emanated from the apartment, there was no response to their knock on the metal door. They summoned emergency assistance and, about 30 minutes later, used crowbars to break open the door and enter the apartment. No one was there. In plain view, however, was a .30-caliber shell casing that was seized and later admitted into evidence at Payton's murder trial.5 6 In due course Payton surrendered to the police, was indicted for murder, and moved to suppress the evidence taken from his apartment. The trial judge held that the warrantless and forcible entry was authorized by the New York Code of Criminal Procedure,6 and that the evidence in plain view was properly seized. He found that exigent circumstances justified the officers' failure to announce their purpose before entering the apartment as required by the statute.7 He had no occasion, however, to decide whether those circumstances also would have justified the failure to obtain a warrant, because he concluded that the warrantless entry was adequately supported by the statute without regard to the circumstances. The Appellate Division, First Department, summarily affirmed.8 7 On March 14, 1974, Obie Riddick was arrested for the commission of two armed robberies that had occurred in 1971. He had been identified by the victims in June 1973, and in January 1974 the police had learned his address. They did not obtain a warrant for his arrest. At about noon on March 14, a detective, accompanied by three other officers, knocked on the door of the Queens house where Riddick was living. When his young son opened the door, they could see Riddick sitting in bed covered by a sheet. They entered the house and placed him under arrest. Before permitting him to dress, they opened a chest of drawers two feet from the bed in search of weapons and found narcotics and related paraphernalia. Riddick was subsequently indicted on narcotics charges. At a suppression hearing, the trial judge held that the warrantless entry into his home was authorized by the revised New York statute,9 and that the search of the immediate area was reasonable under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.10 The Appellate Division, Second Department, affirmed the denial of the suppression motion.11 8 The New York Court of Appeals, in a single opinion, affirmed the convictions of both Payton and Riddick. 45 N.Y.2d 300, 408 N.Y.S.2d 395, 380 N.E.2d 224 (1978). The court recognized that the question whether and under what circumstances an officer may enter a suspect's home to make a warrantless arrest had not been settled either by that court or by this Court.12 In answering that question, the majority of four judges relied primarily on its perception that there is a 9 ". . . substantial difference between the intrusion which attends an entry for the purpose of searching the premises and that which results from an entry for the purpose of making an arrest, and [a] significant difference in the governmental interest in achieving the objective of the intrusion in the two instances." Id., at 310, 408 N.Y.S.2d, at 399, 380 N.E.2d, at 228-229.13 10 The majority supported its holding by noting the "apparent historical acceptance" of warrantless entries to make felony arrests, both in the English common law and in the practice of many American States.14 11 Three members of the New York Court of Appeals dissented on this issue because they believed that the Constitution requires the police to obtain a "warrant to enter a home in order to arrest or seize a person, unless there are exigent circumstances."15 Starting from the premise that, except in carefully circumscribed instances, "the Fourth Amendment forbids police entry into a private home to search for and seize an object without a warrant,"16 the dissenters reasoned that an arrest of the person involves an even greater invasion of privacy and should therefore be attended with at least as great a measure of constitutional protection.17 The dissenters noted "the existence of statutes and the American Law Institute imprimatur codifying the common-law rule authorizing warrantless arrests in private homes" and acknowledged that "the statutory authority of a police officer to make a warrantless arrest in this State has been in effect for almost 100 years," but concluded that "neither antiquity nor legislative unanimity can be determinative of the grave constitutional question presented" and "can never be a substitute for reasoned analysis."18 12 Before addressing the narrow question presented by these appeals,19 we put to one side other related problems that are not presented today. Although it is arguable that the warrantless entry to effect Payton's arrest might have been justified by exigent circumstances, none of the New York courts relied on any such justification. The Court of Appeals majority treated both Payton's and Riddick's cases as involving routine arrests in which there was ample time to obtain a warrant,20 and we will do the same. Accordingly, we have no occasion to consider the sort of emergency or dangerous situation, described in our cases as "exigent circumstances," that would justify a warrantless entry into a home for the purpose of either arrest or search. 13 Nor do these cases raise any question concerning the authority of the police, without either a search or arrest warrant, to enter a third party's home to arrest a suspect. The police broke into Payton's apartment intending to arrest Payton, and they arrested Riddick in his own dwelling. We also note that in neither case is it argued that the police lacked probable cause to believe that the suspect was at home when they entered. Finally, in both cases we are dealing with entries into homes made without the consent of any occupant. In Payton, the police used crowbars to break down the door and in Riddick, although his 3-year-old son answered the door, the police entered before Riddick had an opportunity either to object or to consent. II 14 It is familiar history that indiscriminate searches and seizures conducted under the authority of "general warrants" were the immediate evils that motivated the framing and adoption of the Fourth Amendment.21 Indeed, as originally proposed in the House of Representatives, the draft contained only one clause, which directly imposed limitations on the issuance of warrants, but imposed no express restrictions on warrantless searches or seizures.22 As it was ultimately adopted, however, the Amendment contained two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause.23 The Amendment provides: 15 "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 16 It is thus perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment "reached farther than the concrete form" of the specific cases that gave it birth, and "apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life." Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed.2d 746. Without pausing to consider whether that broad language may require some qualification, it is sufficient to note that the warrantless arrest of a person is a species of seizure required by the Amendment to be reasonable. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. Cf. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. Indeed, as Mr. Justice POWELL noted in his concurrence in United States v. Watson, the arrest of a person is "quintessentially a seizure." 423 U.S., at 428, 96 S.Ct., at 830. 17 The simple language of the Amendment applies equally to seizures of persons and to seizures of property. Our analysis in this case may therefore properly commence with rules that have been well established in Fourth Amendment litigation involving tangible items. As the Court reiterated just a few years ago, the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752. And we have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions of that sort.24 18 It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home without a warrant are presumptively unreasonable.25 Yet is is also well settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. The distinction between a warrantless seizure in an open area and such a seizure on private premises was plainly stated in G. M. Leasing Corp. v. United States, 429 U.S. 338, 354, 97 S.Ct. 619, 629, 50 L.Ed.2d 530: 19 "It is one thing to seize without a warrant property resting in an open area or seizable by levy without an intrusion into privacy, and it is quite another thing to effect a warrantless seizure of property, even that owned by a corporation, situated on private premises to which access is not otherwise available for the seizing officer." 20 As the late Judge Leventhal recognized, this distinction has equal force when the seizure of a person is involved. Writing on the constitutional issue now before us for the United States Court of Appeals for the District of Columbia Circuit sitting en banc, Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970), Judge Leventhal first noted the settled rule that warrantless arrests in public places are valid. He immediately recognized, however, that 21 "[a] greater burden is placed . . . on officials who enter a home or dwelling without consent. Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment." Id., at 317, 435 F.2d, at 389. (Footnote omitted.) 22 His analysis of this question then focused on the long-settled premise that, absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.26 He reasoned that the constitutional protection afforded to the individual's interest in the privacy of his own home is equally applicable to a warrantless entry for the purpose of arresting a resident of the house; for it is inherent in such an entry that a search for the suspect may be required before he can be apprehended.27 Judge Leventhal concluded that an entry to arrest and an entry to search for and to seize property implicate the same interest in preserving the privacy and the sanctity of the home, and justify the same level of constitutional protection. 23 This reasoning has been followed in other Circuits.28 Thus, the Second Circuit recently summarized its position: 24 "To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present." United States v. Reed, 572 F.2d 412, 423 (1978), cert. denied, sub nom. Goldsmith v. United States, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259. 25 We find this reasoning to be persuasive and in accord with this Court's Fourth Amendment decisions. 26 The majority of the New York Court of Appeals, however, suggested that there is a substantial difference in the relative intrusiveness of an entry to search for property and an entry to search for a person. See n. 13, supra. It is true that the area that may legally be searched is broader when executing a search warrant than when executing an arrest warrant in the home. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. This difference may be more theoretical than real, however, because the police may need to check the entire premises for safety reasons, and sometimes they ignore the restrictions on searches incident to arrest.29 27 But the critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual's home. The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home—a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their . . . houses . . . shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. III 28 Without contending that United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, decided the question presented by these appeals, New York argues that the reasons that support the Watson holding require a similar result here. In Watson the Court relied on (a) the well-settled common-law rule that a warrantless arrest in a public place is valid if the arresting officer had probable cause to believe the suspect is a felon;30 (b) the clear consensus among the States adhering to that well-settled common-law rule;31 and (c) the expression of the judgment of Congress that such an arrest is "reasonable."32 We consider each of these reasons as it applies to a warrantless entry into a home for the purpose of making a routine felony arrest. 29 An examination of the common-law understanding of an officer's authority to arrest sheds light on the obviously relevant, if not entirely dispositive,33 consideration of what the Framers of the Amendment might have thought to be reasonable. Initially, it should be noted that the common-law rules of arrest developed in legal contexts that substantially differ from the cases now before us. In these cases, which involve application of the exclusionary rule, the issue is whether certain evidence is admissible at trial.34 See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. At common law, the question whether an arrest was authorized typically arose in civil damages actions for trespass or false arrest, in which a constable's authority to make the arrest was a defense. See, e. g., Leach v. Money, 19 How.St.Tr. 1001, 97 Eng.Rep. 1075 (K.B.1765). Additionally, if an officer was killed while attempting to effect an arrest, the question whether the person resisting the arrest was guilty of murder or manslaughter turned on whether the officer was acting within the bounds of his authority. See M. Foster, Crown Law 308, 312 (1762). See also West v. Cabell, 153 U.S. 78, 85, 14 S.Ct. 752, 753, 38 L.Ed. 643. 30 A study of the common law on the question whether a constable had the authority to make warrantless arrests in the home on mere suspicion of a felony—as distinguished from an officer's right to arrest for a crime committed in his presence—reveals a surprising lack of judicial decisions and a deep divergence among scholars. 31 The most cited evidence of the common-law rule consists of an equivocal dictum in a case actually involving the sheriff's authority to enter a home to effect service of civil process. In Semayne's Case, 5 Co.Rep. 91a, 91b, 77 Eng.Rep. 194, 195-196 (K.B.1603), the Court stated: 32 "In all cases when the King is party, the Sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K.'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors; and that appears well by the stat. of Westm. 1. c. 17. (which it but an affirmance of the common law) as hereafter appears, for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it, and that appears by the book in 18 E. 2. Execut. 252. where it is said, that the K.'s officer who comes to do execution, &c. may open the doors which are shut, and break them, if he cannot have the keys; which proves, that he ought first to demand them, 7 E. 3. 16." (Footnotes omitted.) 33 This passage has been read by some as describing an entry without a warrant. The context strongly implies, however, that the court was describing the extent of authority in executing the King's writ. This reading is confirmed by the phrase "either to arrest him, or to do other execution of the K.'s process" and by the further point that notice was necessary because the owner may "not know of the process." In any event, the passage surely cannot be said unambiguously to endorse warrantless entries. 34 The common-law commentators disagreed sharply on the subject.35 Three distinct views were expressed. Lord Coke, widely recognized by the American colonists "as the greatest authority of his time on the laws of England,"36 clearly viewed a warrantless entry for the purpose of arrest to be illegal.37 Burn, Foster, and Hawkins agreed,38 as did East and Russell, though the latter two qualified their opinions by stating that if an entry to arrest was made without a warrant, the officer was perhaps immune from liability for the trespass if the suspect was actually guilty.39 Blackstone, Chitty, and Stephen took the opposite view, that entry to arrest without a warrant was legal,40 though Stephen relied on Blackstone who, along with Chitty, in turn relied exclusively on Hale. But Hale's view was not quite so unequivocally expressed.41 Further, Hale appears to rely solely on a statement in an early Yearbook, quoted in Burdett v. Abbot, 14 East 1, 155, 104 Eng.Rep. 501, 560 (K.B.1811):42 35 " 'that for felony, or suspicion of felony, a man may break open the house to take the felon; for it is for the commonweal to take them.' " 36 Considering the diversity of views just described, however, it is clear that the statement was never deemed authoritative. Indeed, in Burdett, the statement was described as an "extrajudicial opinion." Ibid.43 37 It is obvious that the common-law rule on warrantless home arrests was not as clear as the rule on arrests in public places. Indeed, particularly considering the prominence of Lord Coke, the weight of authority as it appeared to the Framers was to the effect that a warrant was required, or at the minimum that there were substantial risks in proceeding without one. The common-law sources display a sensitivity to privacy interests that could not have been lost on the Framers. The zealous and frequent repetition of the adage that a "man's house is his castle," made it abundantly clear that both in England44 and in the Colonies "the freedom of one's house" was one of the most vital elements of English liberty.45 38 Thus, our study of the relevant common law does not provide the same guidance that was present in Watson. Whereas the rule concerning the validity of an arrest in a public place was supported by cases directly in point and by the unanimous views of the commentators, we have found no direct authority supporting forcible entries into a home to make a routine arrest and the weight of the scholarly opinion is somewhat to the contrary. Indeed, the absence of any 17th- or 18th-century English cases directly in point, together with the unequivocal endorsement of the tenet that "a man's house is his castle," strongly suggests that the prevailing practice was not to make such arrests except in hot pursuit or when authorized by a warrant. Cf. Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145. In all events, the issue is not one that can be said to have been definitively settled by the common law at the time the Fourth Amendment was adopted. B 39 A majority of the States that have taken a position on the question permit warrantless entry into the home to arrest even in the absence of exigent circumstances. At this time, 24 States permit such warrantless entries;46 15 States clearly prohibit them, though 3 States do so on federal constitutional grounds alone;47 and 11 States have apparently taken no position on the question.48 40 But these current figures reflect a significant decline during the last decade in the number of States permitting warrantless entries for arrest. Recent dicta in this Court raising questions about the practice, see n. 1, supra, and Federal Courts of Appeals' decisions on point, see n. 4, supra, have led state courts to focus on the issue. Virtually all of the state courts that have had to confront the constitutional issue directly have held warrantless entries into the home to arrest to be invalid in the absence of exigent circumstances. See nn. 2, 3, supra. Three state courts have relied on Fourth Amendment grounds alone, while seven have squarely placed their decisions on both federal and state constitutional grounds.49 A number of other state courts, though not having had to confront the issue directly, have recognized the serious nature of the constitutional question.50 Apparently, only the Supreme Court of Florida and the New York Court of Appeals in this case have expressly upheld warrantless entries to arrest in the face of a constitutional challenge.51 41 A longstanding, widespread practice is not immune from constitutional scrutiny. But neither is it to be lightly brushed aside. This is particularly so when the constitutional standard is as amorphous as the word "reasonable," and when custom and contemporary norms necessarily play such a large role in the constitutional analysis. In this case, although the weight of state-law authority is clear, there is by no means the kind of virtual unanimity on this question that was present in United States v. Watson, with regard to warrantless arrests in public places. See 423 U.S., at 422-423, 96 S.Ct., at 827-828. Only 24 of the 50 States currently sanction warrantless entries into the home to arrest, see nn. 46-48, supra, and there is an obvious declining trend. Further, the strength of the trend is greater than the numbers alone indicate. Seven state courts have recently held that warrantless home arrests violate their respective State Constitutions. See n. 3, supra. That is significant because by invoking a state constitutional provision, a state court immunizes its decision from review by this Court.52 This heightened degree of immutability underscores the depth of the principle underlying the result. C 42 No congressional determination that warrantless entries into the home are "reasonable" has been called to our attention. None of the federal statutes cited in the Watson opinion reflects any such legislative judgment.53 Thus, that support for the Watson holding finds no counterpart in this case. 43 Mr. Justice POWELL, concurring in United States v. Watson, supra, at 429, 96 S.Ct., at 830, stated: 44 "But logic sometimes must defer to history and experience. The Court's opinion emphasizes the historical sanction accorded warrantless felony arrests [in public places]." 45 In this case, however, neither history nor this Nation's experience requires us to disregard the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.54 IV 46 The parties have argued at some length about the practical consequences of a warrant requirement as a precondition to a felony arrest in the home.55 In the absence of any evidence that effective law enforcement has suffered in those States that already have such a requirement, see nn. 3, 47, supra, we are inclined to view such arguments with skepticism. More fundamentally, however, such arguments of policy must give way to a constitutional command that we consider to be unequivocal. 47 Finally, we note the State's suggestion that only a search warrant based on probable cause to believe the suspect is at home at a given time can adequately protect the privacy interests at stake, and since such a warrant requirement is manifestly impractical, there need be no warrant of any kind. We find this ingenious argument unpersuasive. It is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate's determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reason able to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. 48 Because no arrest warrant was obtained in either of these cases, the judgments must be reversed and the cases remanded to the New York Court of Appeals for further proceedings not inconsistent with this opinion. 49 It is so ordered. 50 Mr. Justice BLACKMUN, concurring. 51 I joined the Court's opinion in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), upholding, on probable cause, the warrantless arrest in a public place. I, of course, am still of the view that the decision in Watson is correct. The Court's balancing of the competing governmental and individual interests properly occasioned that result. Where, however, the warrantless arrest is in the suspect's home, that same balancing requires that, absent exigent circumstances, the result be the other way. The suspect's interest in the sanctity of his home then outweighs the governmental interests. 52 I therefore join the Court's opinion, firm in the conviction that the result in Watson and the result here, although opposite, are fully justified by history and by the Fourth Amendment. 53 Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting. 54 The Court today holds that absent exigent circumstances officers may never enter a home during the daytime to arrest for a dangerous felony unless they have first obtained a warrant. This hard-and-fast rule, founded on erroneous assumptions concerning the intrusiveness of home arrest entries, finds little or no support in the common law or in the text and history of the Fourth Amendment. I respectfully dissent. 55 * As the Court notes, ante, at 591, the common law of searches and seizures, as evolved in England, as transported to the Colonies, and as developed among the States, is highly relevant to the present scope of the Fourth Amendment. United States v. Watson, 423 U.S. 411, 418-422, 96 S.Ct. 820, 825-827, 46 L.Ed.2d 598 (1976); id., at 425, 429, 96 S.Ct., at 828-830 (POWELL, J., concurring); Gerstein v. Pugh, 420 U.S. 103, 111, 114, 95 S.Ct. 854, 861-863, 43 L.Ed.2d 54 (1975); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925); Bad Elk v. United States, 177 U.S. 529, 534-535, 20 S.Ct. 729, 731, 44 L.Ed. 874 (1900); Boyd v. United States, 116 U.S. 616, 622-630, 6 S.Ct. 524, 527-532, 29 L.Ed. 746 (1886); Kurtz v. Moffitt, 115 U.S. 487, 498-499, 6 S.Ct. 148, 151-152, 29 L.Ed. 459 (1885). Today's decision virtually ignores these centuries of common-law development, and distorts the historical meaning of the Fourth Amendment, by proclaiming for the first time a rigid warrant requirement for all nonexigent home arrest entries. A. 56 As early as the 15th century the common law had limited the Crown's power to invade a private dwelling in order to arrest. A Year Book case of 1455 held that in civil cases the sheriff could not break doors to arrest for debt or trespass, for the arrest was then only in the private interests of a party. Y.B. 13 Edw. IV, 9a. To the same effect is Semayne's Case, 5 Co.Rep. 91a, 77 Eng.Rep. 194 (K.B.1603). The holdings of these cases were condensed in the maxim that "every man's house is his castle." H. Broom, Legal Maxims * 321-329. 57 However, this limitation on the Crown's power applied only to private civil actions. In cases directly involving the Crown, the rule was that "[t]he king's keys unlock all doors." Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 800 (1924). The Year Book case cited above stated a different rule for criminal cases: for a felony, or suspicion of felony, one may break into the dwelling house to take the felon, for it is the common weal and to the interest of the King to take him. Likewise, Semayne's Case stated in dictum: 58 "In all cases when the King is party, the Sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K[ing]'s process, if otherwise he cannot enter." 5 Co.Rep., at 91b, 77 Eng.Rep., at 195. 59 Although these cases established the Crown's power to enter a dwelling in criminal cases, they did not directly address the question of whether a constable could break doors to arrest without authorization by a warrant. At common law, the constable's office was two fold. As conservator of the peace, he possessed, virtute officii, a "great original and inherent authority with regard to arrests," 4 W. Blackstone, Commentaries * 292 (hereinafter Blackstone), and could "without any other warrant but from [himself] arrest felons, and those that [were] probably suspected of felonies," 2 M. Hale, Pleas of the Crown 85 (1736) (hereinafter Hale); see United States v. Watson, supra, 423 U.S. at 418-419, 96 S.Ct. 825. Second, as a subordinate public official, the constable performed ministerial tasks under the authorization and direction of superior officers. See 1 R. Burn, The Justice of the Peace and Parish Officer 295 (6th ed. 1758) (hereinafter Burn); 2 W. Hawkins, Pleas of the Crown 130-132 (6th ed. 1787) (hereinafter Hawkins). It was in this capacity that the constable executed warrants issued by justices of the peace. The warrant authorized the constable to take actions beyond his inherent powers.1 It also ensured that he actually carried out his instructions, by giving him clear notice of his duty, for the breach of which he could be punished, 4 Blackstone * 291; 1 Burn 295; 2 Hale 88, and by relieving him from civil liability even if probable cause to arrest were lacking, 4 Blackstone * 291; 1 Burn 295-296; M. Dalton, The Country Justice 579 (1727 ed.) (hereinafter Dalton); 2 Hawkins 132-133. For this reason, warrants were sometimes issued even when the act commanded was within the constable's inherent authority. Dalton 576. 60 As the Court notes, commentators have differed as to the scope of the constable's inherent authority, when not acting under a warrant, to break doors in order to arrest. Probably the majority of commentators would permit arrest entries on probable suspicion even if the person arrested were not in fact guilty. 4 Blackstone * 292; 1 Burn 87-88;2 1 J. Chitty, Criminal Law 23 (1816) (hereinafter Chitty); Dalton 426; 1 Hale 583; 2 id., at 90-94. These authors, in short, would have permitted the type of home arrest entries that occurred in the present cases. The inclusion of Blackstone in this list is particularly significant in light of his profound impact on the minds of the colonists at the time of the framing of the Constitution and the ratification of the Bill of Rights. 61 A second school of thought, on which the Court relies, held that the constable could not break doors on mere "bare suspicion." M. Foster, Crown Law 321 (1762); 2 Hawkins 139; 1 E. East, Pleas of the Crown 321-322 (1806); 1 W. Russell, Treatise on Crimes and Misdemeanors 745 (1819) (hereinafter Russell). Cf. 4 E. Coke, Institutes * 177. Although this doctrine imposed somewhat greater limitations on the constable's inherent power, it does not support the Court's hard-and-fast rule against warrantless nonexigent home entries upon probable cause. East and Russell state explicitly what Foster and Hawkins imply: although mere "bare suspicion" will not justify breaking doors, the constable's action would be justifiable if the person arrested were in fact guilty of a felony. These authorities can be read as imposing a somewhat more stringent requirement of probable cause for arrests in the home than for arrests elsewhere. But they would not bar nonexigent, warrantless home arrests in all circumstances, as the Court does today. And Coke is flatly contrary to the Court's rule requiring a warrant, since he believed that even a warrant would not justify an arrest entry until the suspect had been indicted. 62 Finally, it bears noting that the doctrine against home entries on bare suspicion developed in a period in which the validity of any arrest on bare suspicion—even one occurring outside the home—was open to question. Not until Lord Mansfield's decision in Samuel v. Payne, 1 Doug. 359, 99 Eng.Rep. 230 (K.B.1780), was it definitively established that the constable could arrest on suspicion even if it turned out that no felony had been committed. To the extent that the commentators relied on by the Court reasoned from any general rule against warrantless arrests based on bare suspicion, the rationale for their position did not survive Samuel v. Payne. B 63 The history of the Fourth Amendment does not support the rule announced today. At the time that Amendment was adopted the constable possessed broad inherent powers to arrest. The limitations on those powers derived, not from a warrant "requirement," but from the generally ministerial nature of the constable's office at common law. Far from restricting the constable's arrest power, the institution of the warrant was used to expand that authority by giving the constable delegated powers of a superior officer such as a justice of the peace. Hence at the time of the Bill of Rights, the warrant functioned as a powerful tool of law enforcement rather than as a protection for the rights of criminal suspects. 64 In fact, it was the abusive use of the warrant power, rather than any excessive zeal in the discharge of peace officers' inherent authority, that precipitated the Fourth Amendment. That Amendment grew out of colonial opposition to the infamous general warrants known as writs of assistance, which empowered customs officers to search at will, and to break open receptacles or packages, wherever they suspected uncustomed goods to be. United States v. Chadwick, 433 U.S. 1, 7-8, 97 S.Ct. 2476, 2481-2482, 53 L.Ed.2d 538 (1977); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 51-78 (1937) (hereinafter Lasson). The writs did not specify where searches could occur and they remained effective throughout the sovereign's lifetime. Id., at 54. In effect, the writs placed complete discretion in the hands of executing officials. Customs searches of this type were beyond the inherent power of common-law officials and were the subject of court suits when performed by colonial customs agents not acting pursuant to a writ. Id. at 55. 65 The common law was the colonists' ally in their struggle against writs of assistance. Hale and Blackstone had condemned general warrants, 1 Hale 580; 4 Blackstone * 291, and fresh in the colonists' minds were decisions granting recovery to parties arrested or searched under general warrants on suspicion of seditious libel. Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807 (K.B.1765); Huckle v. Money, 2 Wils. 205, 95 Eng.Rep. 768 (K.B.1763); Wilkes v. Wood, 19 How.St.Tr. 1153, 98 Eng.Rep. 489 (K.B.1763). When James Otis, Jr., delivered his courtroom oration against writs of assistance in 1761, he looked to the common law in asserting that the writs, if not construed specially, were void as a form of general warrant. 2 Legal Papers of John Adams 139-144 (L. Wroth & H. Zobel eds. 1965).3 66 Given the colonists' high regard for the common law, it is indeed unlikely that the Framers of the Fourth Amendment intended to derogate from the constable's inherent common-law authority. Such an argument was rejected in the important early case of Rohan v. Sawin, 59 Mass. 281, 284-285 (1851): 67 "It has been sometimes contended, that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions, forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under oath. Those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon a complaint made under oath. They do not conflict with the authority of constables or other peace-officers . . . to arrest without warrant those who have committed felonies. The public safety, and the due apprehension of criminals, charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law."4 68 That the Framers were concerned about warrants, and not about the constable's inherent power to arrest, is also evident from the text and legislative history of the Fourth Amendment. That provision first reaffirms the basic principle of common law, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." The Amendment does not here purport to limit or restrict the peace officer's inherent power to arrest or search, but rather assumes an existing right against actions in excess of that inherent power and ensures that it remain inviolable. As I have noted, it was not generally considered "unreasonable" at common law for officers to break doors in making warrantless felony arrests. The Amendment's second clause is directed at the actions of officers taken in their ministerial capacity pursuant to writs of assistance and other warrants. In contrast to the first Clause, the second Clause does purport to alter colonial practice: "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 69 That the Fourth Amendment was directed towards safeguarding the rights at common law, and restricting the warrant practice which gave officers vast new powers beyond their inherent authority, is evident from the legislative history of that provision. As originally drafted by James Madison, it was directed only at warrants; so deeply ingrained was the basic common-law premise that it was not even expressed: 70 "The rights of the people to be secured in their persons[,] their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized." 1 Annals of Cong. 452 (1789). 71 The Committee of Eleven reported the provision as follows: 72 "The right of the people to be secured in their persons, houses, papers, and effects, shall not be violated by warrants issuing without probable cause, supported by oath or affirmation, and not particularly describing the place to be searched, and the persons or things to be seized." Id., at 783. 73 The present language was adopted virtually at the last moment by the Committee of Three, which had been appointed only to arrange the Amendments rather than to make substantive changes in them. Lasson 101. The Amendment passed the House; but "the House seems never to have consciously agreed to the Amendment in its present form." Ibid. In any event, because the sanctity of the common-law protections was assumed from the start, it is evident that the change made by the Committee of Three was a cautionary measure without substantive content. 74 In sum, the background, text, and legislative history of the Fourth Amendment demonstrate that the purpose was to restrict the abuses that had developed with respect to warrants; the Amendment preserved common-law rules of arrest. Because it was not considered generally unreasonable at common law for officers to break doors to effect a warrantless felony arrest, I do not believe that the Fourth Amendment was intended to outlaw the types of police conduct at issue in the present cases. C 75 Probably because warrantless arrest entries were so firmly accepted at common law, there is apparently no recorded constitutional challenge to such entries in the 19th-century cases. Common-law authorities on both sides of the Atlantic, however, continued to endorse the validity of such arrests. E. g., 1 J. Bishop, Commentaries on the Law of Criminal Procedure §§ 195-199 (2d ed. 1872); 1 Chitty 23; 1 J. Colby, A Practical Treatise upon the Criminal Law and Practice of the State of New York 73-74 (1868); F. Heard, A Practical Treatise on the Authority and Duties of Trial Justices, District, Police, and Municipal Courts, in Criminal Cases 135, 148 (1879); 1 Russell 745. Like their predecessors, these authorities conflicted as to whether the officer would be liable in damages if it were shown that the person arrested was not guilty of a felony. But all agreed that warrantless home entries would be permissible in at least some circumstances. None endorsed the rule of today's decision that a warrant is always required, absent exigent circumstances, to effect a home arrest. 76 Apparently the first official pronouncement on the validity of warrantless home arrests came with the adoption of state codes of criminal procedure in the latter 19th and early 20th centuries. The great majority of these codes accepted and endorsed the inherent authority of peace officers to enter dwellings in order to arrest felons. By 1931, 24 of 29 state codes authorized such warrantless arrest entries.5 By 1975, 31 of 37 state codes authorized warrantless home felony arrests.6 The American Law Institute included such authority in its model legislation in 1931 and again in 1975.7 77 The first direct judicial holding on the subject of warrantless home arrests seems to have been Commonwealth v. Phelps, 209 Mass. 396, 95 N.E. 868 (1911). The holding in this case that such entries were constitutional became the settled rule in the States for much of the rest of the century. See Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 803 (1924). Opinions of this Court also assumed that such arrests were constitutional.8 78 This Court apparently first questioned the reasonableness of warrantless nonexigent entries to arrest in Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), noting in dictum that such entries would pose a "grave constitutional question" if carried out at night.9 In Coolidge v. New Hampshire, 403 U.S. 443, 480, 91 S.Ct. 2022, 2045, 29 L.Ed.2d 564 (1971), the Court stated, again in dictum: 79 "[I]f [it] is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man's house for purposes of arrest, it might be wise to re-examine the assumption. Such a re-examination 'would confront us with a grave constitutional question, namely, whether the forcible nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he has committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment.' Jones v. United States, 357 U.S., at 499-500, 78 S.Ct., at 1257." 80 Although Coolidge and Jones both referred to the special problem of warrantless entries during the nighttime,10 it is not surprising that state and federal courts have tended to read those dicta as suggesting a broader infirmity applying to daytime entries also, and that the majority of recent decisions have been against the constitutionality of all types of warrantless, nonexigent home arrest entries. As the Court concedes, however, even despite Coolidge and Jones it remains the case that 81 "[a] majority of the States that have taken a position on the question permit warrantless entry into the home to arrest even in the absence of exigent circumstances. At this time, 24 States permit such warrantless entries; 15 States clearly prohibited them, though 3 States do so on federal constitutional grounds alone; and 11 States have apparently taken no position on the question." Ante, at 598-599 (footnotes omitted). 82 This consensus, in the face of seemingly contrary dicta from this Court, is entitled to more deference than the Court today provides. Cf. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). D 83 In the present cases, as in Watson, the applicable federal statutes are relevant to the reasonableness of the type of arrest in question. Under 18 U.S.C. § 3052, specified federal agents may "make arrests without warrants for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States, if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony." On its face this provision authorizes federal agents to make warrantless arrests anywhere, including the home. Particularly in light of the accepted rule at common law and among the States permitting warrantless home arrests, the absence of any explicit exception for the home from § 3052 is persuasive evidence that Congress intended to authorize warrantless arrests there as well as elsewhere. 84 Further, Congress has not been unaware of the special problems involved in police entries into the home. In 18 U.S.C. § 3109, it provided that 85 "[t]he officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of its authority and purpose, he is refused admittance . . . ." 86 See Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). In explicitly providing authority to enter when executing a search warrant, Congress surely did not intend to derogate from the officers' power to effect an arrest entry either with or without a warrant. Rather, Congress apparently assumed that this power was so firmly established either at common law or by statute that no explicit grant of arrest authority was required in § 3109. In short, although the Court purports to find no guidance in the relevant federal statutes, I believe that fairly read they authorize the type of police conduct at issue in these cases. II A. 87 Today's decision rests, in large measure, on the premise that warrantless arrest entries constitute a particularly severe invasion of personal privacy. I do not dispute that the home is generally a very private area or that the common law displayed a special "reverence . . . for the individual's right of privacy in his house." Miller v. United States, supra, at 313, 78 S.Ct., at 1198. However, the Fourth Amendment is concerned with protecting people, not places, and no talismanic significance is given to the fact that an arrest occurs in the home rather than elsewhere. Cf. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S., at 630, 6 S.Ct., at 532. It is necessary in each case to assess realistically the actual extent of invasion of constitutionally protected privacy. Further, as Mr. Justice POWELL observed in United States v. Watson, supra, at 428, 96 S.Ct., at 830 (concurring opinion), all arrests involve serious intrusions into an individual's privacy and dignity. Yet we settled in Watson that the intrusiveness of a public arrest is not enough to mandate the obtaining of a warrant. The inquiry in the present case, therefore, is whether the incremental intrusiveness that results from an arrest's being made in the dwelling is enough to support an inflexible constitutional rule requiring warrants for such arrests whenever exigent circumstances are not present. 88 Today's decision ignores the carefully crafted restrictions on the common-law power of arrest entry and thereby overestimates the dangers inherent in that practice. At common law, absent exigent circumstances, entries to arrest could be made only for felony. Even in cases of felony, the officers were required to announce their presence, demand admission, and be refused entry before they were entitled to break doors.11 Further, it seems generally accepted that entries could be made only during daylight hours.12 And, in my view, the officer entering to arrest must have reasonable grounds to believe, not only that the arrestee has committed a crime, but also that the person suspected is present in the house at the time of the entry.13 89 These four restrictions on home arrests—felony, knock and announce, daytime, and stringent probable cause—constitute powerful and complementary protections for the privacy interests associated with the home. The felony requirement guards against abusive or arbitrary enforcement and ensures that invasions of the home occur only in case of the most serious crimes. The knock-and-announce and daytime requirements protect individuals against the fear, humiliation, and embarrassment of being aroused from their beds in states of partial or complete undress. And these requirements allow the arrestee to surrender at his front door, thereby maintaining his dignity and preventing the officers from entering other rooms of the dwelling. The stringent probable-cause requirement would help ensure against the possibility that the police would enter when the suspect was not home, and, in searching for him, frighten members of the family or ransack parts of the house, seizing items in plain view. In short, these requirements, taken together, permit an individual suspected of a serious crime to surrender at the front door of his dwelling and thereby avoid most of the humiliation and indignity that the Court seems to believe necessarily accompany a house arrest entry. Such a front-door arrest, in my view, is no more intrusive on personal privacy than the public warrantless arrests which we found to pass constitutional muster in Watson.14 90 All of these limitations on warrantless arrest entries are satisfied on the facts of the present cases. The arrests here were for serious felonies—murder and armed robbery—and both occurred during daylight hours. The authorizing statutes required that the police announce their business and demand entry; neither Payton nor Riddick makes any contention that these statutory requirements were not fulfilled. And it is not argued that the police had no probable cause to believe that both Payton and Riddick were in their dwellings at the time of the entries. Today's decision, therefore, sweeps away any possibility that warrantless home entries might be permitted in some limited situations other than those in which exigent circumstances are present. The Court substitutes, in one sweeping decision, a rigid constitutional rule in place of the common-law approach, evolved over hundreds of years, which achieved a flexible accommodation between the demands of personal privacy and the legitimate needs of law enforcement. 91 A rule permitting warrantless arrest entries would not pose a danger that officers would use their entry power as a pretext to justify an otherwise invalid warrantless search. A search pursuant to a warrantless arrest entry will rarely, if ever, be as complete as one under authority of a search warrant. If the suspect surrenders at the door, the officers may not enter other rooms. Of course, the suspect may flee or hide, or may not be at home, but the officers cannot anticipate the first two of these possibilities and the last is unlikely given the requirement of probable cause to believe that the suspect is at home. Even when officers are justified in searching other rooms, they may seize only items within the arrestee's position or immediate control or items in plain view discovered during the course of a search reasonably directed at discovering a hiding suspect. Hence a warrantless home entry is likely to uncover far less evidence than a search conducted under authority of a search warrant. Furthermore, an arrest entry will inevitably tip off the suspects and likely result in destruction or removal of evidence not uncovered during the arrest. I therefore cannot believe that the police would take the risk of losing valuable evidence through a pretextual arrest entry rather than applying to a magistrate for a search warrant. B 92 While exaggerating the invasion of personal privacy involved in home arrests, the Court fails to account for the danger that its rule will "severely hamper effective law enforcement," United States v. Watson, 423 U.S., at 431, 96 S.Ct., at 831 (POWELL, J., concurring); Gerstein v. Pugh, 420 U.S., at 113, 95 S.Ct., at 862. The policeman on his beat must now make subtle discriminations that perplex even judges in their chambers. As Mr. Justice POWELL noted, concurring in United States v. Watson, supra, police will sometimes delay making an arrest, even after probable cause is established, in order to be sure that they have enough evidence to convict. Then, if they suddenly have to arrest, they run the risk that the subsequent exigency will not excuse their prior failure to obtain a warrant. This problem cannot effectively be cured by obtaining a warrant as soon as probable cause is established because of the chance that the warrant will go stale before the arrest is made. 93 Further, police officers will often face the difficult task of deciding whether the circumstances are sufficiently exigent to justify their entry to arrest without a warrant. This is a decision that must be made quickly in the most trying of circumstances. If the officers mistakenly decide that the circumstances are exigent, the arrest will be invalid and any evidence seized incident to the arrest or in plain view will be excluded at trial. On the other hand, if the officers mistakenly determine that exigent circumstances are lacking, they may refrain from making the arrest, thus creating the possibility that a dangerous criminal will escape into the community. The police could reduce the likelihood of escape by staking out all possible exits until the circumstances become clearly exigent or a warrant is obtained. But the costs of such a stakeout seem excessive in an era of rising crime and scarce police resources. 94 The uncertainty inherent in the exigent-circumstances determination burdens the judicial system as well. In the case of searches, exigent circumstances are sufficiently unusual that this Court has determined that the benefits of a warrant outweigh the burdens imposed, including the burdens on the judicial system. In contrast, arrests recurringly involve exigent circumstances, and this Court has heretofore held that a warrant can be dispensed with without undue sacrifice in Fourth Amendment values. The situation should be no dif ferent with respect to arrests in the home. Under today's decision, whenever the police have made a warrantless home arrest there will be the possibility of "endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like," United States v. Watson, supra, at 423-424, 96 S.Ct., at 828. 95 Our cases establish that the ultimate test under the Fourth Amendment is one of "reasonableness." Marshall v. Barlow's, Inc., 436 U.S. 307, 315-316, 98 S.Ct. 1816, 1822, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967). I cannot join the Court in declaring unreasonable a practice which has been thought entirely reasonable by so many for so long. It would be far preferable to adopt a clear and simple rule: after knocking and announcing their presence, police may enter the home to make a daytime arrest without a warrant when there is probable cause to believe that the person to be arrested committed a felony and is present in the house. This rule would best comport with the common-law background, with the traditional practice in the States, and with the history and policies of the Fourth Amendment. Accordingly, I respectfully dissent. 96 Mr. Justice REHNQUIST, dissenting. 97 The Court today refers to both Payton and Riddick as involving "routine felony arrests." I have no reason to dispute the Court's characterization of these arrests, but cannot refrain from commenting on the social implications of the result reached by the Court. Payton was arrested for the murder of the manager of a gas station; Riddick was arrested for two armed robberies. If these are indeed "routine felony arrests," which culminated in convictions after trial upheld by the state courts on appeal, surely something is amiss in the process of the administration of criminal justice whereby these convictions are now set aside by this Court under the exclusionary rule which we have imposed upon the States under the Fourth and Fourteenth Amendments to the United States Constitution. 98 I fully concur in and join the dissenting opinion of Mr. Justice WHITE. There is significant historical evidence that we have over the years misread the history of the Fourth Amendment in connection with searches, elevating the warrant requirement over the necessity for probable cause in a way which the Framers of that Amendment did not intend. See T. Taylor, Two Studies in Constitutional Interpretation 38-50 (1969). But one may accept all of that as stare decisis, and still feel deeply troubled by the transposition of these same errors into the area of actual arrests of felons within their houses with respect to whom there is probable cause to suspect guilt of the offense in question. 1 See also United States v. Watson, 423 U.S., at 433, 96 S.Ct., at 832 (STEWART, J., concurring); id., at 432-433, 96 S.Ct., at 832 (POWELL, J., concurring); Gerstein v. Pugh, 420 U.S. 103, 113, n. 13, 95 S.Ct. 854, 863 n. 13, 43 L.Ed.2d 54; Coolidge v. New Hampshire, 403 U.S. 443, 474-481, 91 S.Ct. 2022, 2042-2045, 29 L.Ed.2d 564; Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257-1258, 2 L.Ed.2d 1514. Cf. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300. 2 See State v. Perez, 277 So.2d 778 (1973), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 468. 3 See State v. Cook, 115 Ariz. 188, 564 P.2d 877 (1977) (resting on both state and federal constitutional provisions); People v. Ramey, 16 Cal.3d 263, 545 P.2d 1333 (1976), cert. denied, 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299 (state and federal); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971) (federal only); State v. Jones, 274 N.W.2d 273 (Iowa 1979) (state and federal); State v. Platten, 225 Kan. 764, 594 P.2d 201 (1979) (state and federal); Commonwealth v. Forde, 367 Mass. 798, 329 N.E.2d 717 (1975) (federal only); State v. Olson, 287 Or. 157, 598 P.2d 670 (1979) (state and federal); Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978) (federal only); State v. McNeal, 251 S.E.2d 484 (W.Va.1978) (state and federal); Laasch v. State, 84 Wis.2d 587, 267 N.W.2d 278 (1978) (state and federal). 4 Compare United States v. Reed, 572 F.2d 412 (CA2 1978), cert. denied, sub nom. Goldsmith v. United States, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259; United States v. Killebrew, 560 F.2d 729 (CA6 1977); United States v. Shye, 492 F.2d 886 (CA6 1974); United States v. Houle, 603 F.2d 1297 (CA8 1979); United States v. Prescott, 581 F.2d 1343 (CA9 1978); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970), with United States v. Williams, 573 F.2d 348 (CA5 1978); United States ex rel. Wright v. Woods, 432 F.2d 1143 (CA7 1970), cert. denied, 401 U.S. 966, 91 S.Ct. 983, 28 L.Ed.2d 248. Three other Circuits have assumed without deciding that warrantless home arrests are unconstitutional. United States v. Bradley, 455 F.2d 1181 (CA1 1972); United States v. Davis, 461 F.2d 1026 (CA3 1972); Vance v. North Carolina, 432 F.2d 984 (CA4 1970). And one Circuit has upheld such an arrest without discussing the constitutional issue. Michael v. United States, 393 F.2d 22 (CA10 1968). 5 A thorough search of the apartment resulted in the seizure of additional evidence tending to prove Payton's guilt, but the prosecutor stipulated that the officers' warrantless search of the apartment was illegal and that all the seized evidence except the shell casing should be suppressed. "MR. JACOBS: There's no question that the evidence that was found in bureau drawers and in the closet was illegally obtained. I'm perfectly willing to concede that, and I do so in my memorandum of law. There's no question about that." App. 4. 6 "At the time in question, January 15, 1970, the law applicable to the police conduct related above was governed by the Code of Criminal Procedure. Section 177 of the Code of Criminal Procedure as applicable to this case recited: 'A peace officer may, without a warrant, arrest a person, . . . 3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.' Section 178 of the Code of Criminal Procedure provided: 'To make an arrest, as provided in the last section [177], the officer may break open an outer or inner door or window of a building, if, after notice of his office and purpose, he be refused admittance.' " 84 Misc.2d 973, 974-975, 376 N.Y.S.2d 779, 780 (Sup.Ct., Trial Term, N.Y. County, 1974). 7 "Although Detective Malfer knocked on the defendant's door, it is not established that at this time he announced that his purpose was to arrest the defendant. Such a declaration of purpose is unnecessary when exigent circumstances are present (People v. Wojciechowski, 31 A.D.2d 658, 296 N.Y.S.2d 524; People v. McIlwain, 28 A.D.2d 711, 281 N.Y.S.2d 218). " 'Case law has made exceptions from the statute or common-law rules for exigent circumstances which may allow dispensation with the notice . . . It has also been held or suggested that notice is not required if there is reason to believe that it will allow an escape or increase unreasonably the physical risk to the police or to innocent persons.' (People v. Floyd, 26 N.Y.2d 558, 562, 312 N.Y.S.2d 193, 260 N.E.2d 815.) "The facts of this matter indicate that a grave offense had been committed; that the suspect was reasonably believed to be armed and could be a danger to the community; that a clear showing of probable cause existed and that there was strong reason to believe that the suspect was in the premises being entered and that he would escape if not swiftly apprehended. From this fact the court finds that exigent circumstances existed to justify noncompliance with section 178. The court holds, therefore, that the entry into defendant's apartment was valid." Id., at 975, 376 N.Y.S.2d, at 780-781. 8 55 A.D.2d 859, 390 N.Y.S.2d 769 (1976). 9 New York Crim.Proc.Law § 140.15(4) (McKinney 1971) provides, with respect to arrest without a warrant: "In order to effect such an arrest, a police officer may enter premises in which he reasonably believes such person to be present, under the same circumstances and in the same manner as would be authorized, by the provisions of subdivisions four and five of section 120.80, if he were attempting to make such arrest pursuant to a warrant of arrest." Section 120.80, governing execution of arrest warrants, provides in relevant part: "4. In order to effect the arrest, the police officer may, under circumstances and in a manner prescribed in this subdivision, enter any premises in which he reasonably believes the defendant to be present. Before such entry, he must give, or make reasonable effort to give, notice of his authority and purpose to an occupant thereof, unless there is reasonable cause to believe that the giving of such notice will: "(a) Result in the defendant escaping or attempting to escape; or "(b) Endanger the life or safety of the officer or another person; or "(c) Result in the destruction, damaging or secretion of material evidence. "5. If the officer is authorized to enter premises without giving notice of his authority and purpose, or if after giving such notice he is not admitted, he may enter such premises, and by a breaking if necessary." 10 App. 63-66. 11 56 A.D.2d 937, 392 N.Y.S.2d 848 (1977). One justice dissented on the ground that the officers' failure to announce their authority and purpose before entering the house made the arrest illegal as a matter of state law. 12 45 N.Y.2d, at 309-310, 408 N.Y.S.2d, at 399, 380 N.E.2d, at 228. 13 The majority continued: "In the case of the search, unless appropriately limited by the terms of a warrant, the incursion on the householder's domain normally will be both more extensive and more intensive and the resulting invasion of his privacy of greater magnitude than what might be expected to occur on an entry made for the purpose of effecting his arrest. A search by its nature contemplates a possibly thorough rummaging through possessions, with concurrent upheaval of the owner's chosen or random placement of goods and articles and disclosure to the searchers of a myriad of personal items and details which he would expect to be free from scrutiny by uninvited eyes. The householder by the entry and search of his residence is stripped bare, in greater or lesser degree, of the privacy which normally surrounds him in his daily living, and, if he should be absent, to an extent of which he will be unaware. "Entry for the purpose of arrest may be expected to be quite different. While the taking into custody of the person of the householder is unquestionably of grave import, there is no accompanying prying into the area of expected privacy attending his possessions and affairs. That personal seizure alone does not require a warrant was established by United States v. Watson (423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, supra ), which upheld a warrantless arrest made in a public place. In view of the minimal intrusion on the elements of privacy of the home which results from entry on the premises for making an arrest (as compared with the gross intrusion which attends the arrest itself), we perceive no sufficient reason for distinguishing between an arrest in a public place and an arrest in a residence. To the extent that an arrest will always be distasteful or offensive, there is little reason to assume that arrest within the home is any more so than arrest in a public place; on the contrary, it may well be that because of the added exposure the latter may be more objectionable. "At least as important, and perhaps even more so, in concluding that entries to make arrests are not 'unreasonable'—the substantive test under the constitutional proscriptions—is the objective for which they are made, viz., the arrest of one reasonably believed to have committed a felony, with resultant protection to the community. The 'reasonableness' of any governmental intrusion is to be judged from two perspectives—that of the defendant, considering the degree and scope of the invasion of his person or property; that of the People, weighing the objective and imperative of governmental action. The community's interest in the apprehension of criminal suspects is of a higher order than is its concern for the recovery of contraband or evidence; normally the hazards created by the failure to apprehend far exceed the risks which may follow nonrecovery." Id., at 310-311, 408 N.Y.S.2d, at 399, 380 N.E.2d, at 229. 14 "The apparent historical acceptance in the English common law of warrantless entries to make felony arrests (2 Hale, Historia Placitorum Coronae, History of Pleas of Crown [1st Amer. ed., 1847], p. 92; Chitty, Criminal Law [3d Amer., from 2d London ed., 1836] 22-23), and the existence of statutory authority for such entries in this State since the enactment of the Code of Criminal Procedure in 1881 argue against a holding of unconstitutionality and substantiate the reasonableness of such procedure. . . . "Nor do we ignore the fact that a number of jurisdictions other than our own have also enacted statutes authorizing warrantless entries of buildings (without exception for homes) for purposes of arrest. The American Law Institute's Model Code of Pre-Arraignment Procedure makes similar provision in section 120.6, with suggested special restrictions only as to nighttime entries." Id., at 311-312, 408 N.Y.S.2d, at 400, 380 N.E.2d, at 229-230 (footnotes omitted). 15 Id., at 315, 408 N.Y.S.2d, at 403, 380 N.E.2d, at 232 (Wachtler, J., dissenting). 16 Id., at 319-320, 408 N.Y.S.2d, at 406, 380 N.E.2d, at 235 (Cooke, J., dissenting). 17 "Although the point has not been squarely adjudicated since Coolidge [v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564,] (see United States v. Watson, 423 U.S. 411, 418, n. 6, 96 S.Ct. 820 [825 n. 6], 46 L.Ed.2d 598), its proper resolution, it is submitted, is manifest. At the core of the Fourth Amendment, whether in the context of a search or an arrest, is the fundamental concept that any governmental intrusion into an individual's home or expectation of privacy must be strictly circumscribed (see, e. g., Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524 [532,] 29 L.Ed. 746; Camara v. Municipal Ct., 387 U.S. 523, 528, 87 S.Ct. 1727 [, 1730,] 18 L.Ed.2d 930). To achieve that end, the framers of the amendment interposed the warrant requirement between the public and the police, reflecting their conviction that the decision to enter a dwelling should not rest with the officer in the field, but rather with a detached and disinterested Magistrate (McDonald v. United States, 335 U.S. 451, 455-456, 69 S.Ct. 191, [193,] 93 L.Ed. 153; Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, [368-369,] 92 L.Ed. 436). Inasmuch as the purpose of the Fourth Amendment is to guard against arbitrary governmental invasions of the home, the necessity of prior judicial approval should control any contemplated entry, regardless of the purpose for which that entry is sought. By definition, arrest entries must be included within the scope of the amendment, for while such entries are for persons, not things, they are, nonetheless, violations of privacy, the chief evil that the Fourth Amendment was designed to deter (Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, [682,] 5 L.Ed.2d 734)." Id., at 320-321, 408 N.Y.S.2d, at 406, 380 N.E.2d, at 235-236 (Cooke, J., dissenting). 18 Id., at 324, 408 N.Y.S.2d, at 409, 380 N.E.2d, at 238 (Cooke, J., dissenting). 19 Although it is not clear from the record that appellants raised this constitutional issue in the trial courts, since the highest court of the State passed on it, there is no doubt that it is properly presented for review by this Court. See Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344. 20 45 N.Y.2d, at 308, 408 N.Y.S.2d, at 398, 380 N.E.2d, at 228. Judge Wachtler in dissent, however, would have upheld the warrantless entry in Payton's case on exigency grounds, and therefore agreed with the majority's refusal to suppress the shell casing. See id., at 315, 408 N.Y.S.2d, at 403, 380 N.E.2d, at 232. 21 "Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of British tax laws. They were denounced by James Otis as 'the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,' because they placed 'the liberty of every man in the hands of every petty officer.' The historic occasion of that denunciation, in 1761 at Boston, has been characterized as 'perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. "Then and there," said John Adams, "then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born." ' Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 529, 29 L.Ed. 746." Stanford v. Texas, 379 U.S. 476, 481-482, 85 S.Ct. 506, 510, 13 L.Ed.2d 431. See also J. Landynski, Search and Seizure and the Supreme Court 19-48 (1966); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 13-78 (1937); T. Taylor, Two Studies in Constitutional Interpretation 19-44 (1969). 22 " 'The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.' Annals of Cong., 1st Cong., 1st sess., p. 452." Lasson, supra, at 100, n. 77. 23 "The general right of security from unreasonable search and seizure was given a sanction of its own and the amendment thus intentionally given a broader scope. That the prohibition against 'unreasonable searches' was intended, accordingly, to cover something other than the form of the warrant is a question no longer left to implication to be derived from the phraseology of the Amendment." Lasson, supra, at 103. (Footnote omitted.) 24 As Mr. Justice Jackson so cogently observed in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent." (Footnotes omitted.) 25 As the Court stated in Coolidge v. New Hampshire : "Both sides to the controversy appear to recognize a distinction between searches and seizures that take place on a man's property—his home or office—and those carried out elsewhere. It is accepted, at least as a matter of principle, that a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of 'exigent circumstances.' * * * * * "It is clear, then, that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined 'exigent circumstances.' " 403 U.S., at 474-475, 477-478, 91 S.Ct., at 2042, 2044. Although Mr. Justice Harlan joined this portion of the Court's opinion, he expressly disclaimed any position on the issue now before us. Id., at 492, 91 S.Ct., at 2051 (concurring opinion). 26 As Mr. Justice Harlan wrote for the Court: "It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant. Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145; Taylor v. United States, 286 U.S. 1, 6, 52 S.Ct. 466, 467, 76 L.Ed. 951. The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy. See, e. g., Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436; McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153; cf. Giordenello v. United States, [357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503]. This purpose is realized by Rule 41 of the Federal Rules of Criminal Procedure, which implements the Fourth Amendment by requiring that an impartial magistrate determine from an affidavit showing probable cause whether information possessed by law-enforcement officers justifies the issuance of a search warrant. Were federal officers free to search without a warrant merely upon probable cause to believe that certain articles were within a home, the provisions of the Fourth Amendment would become empty phrases, and the protection it affords largely nullified." Jones v. United States, 357 U.S., at 497-498, 78 S.Ct., at 1256 (footnote omitted). 27 See generally Rotenberg & Tanzer, Searching for the Person to be Seized, 35 Ohio St.L.J. 56 (1974). 28 See n. 4, supra. 29 See, e. g., the facts in Payton's case, n. 5, supra. 30 "The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury's Laws of England 344-345 (3d ed. 1955); 4 W. Blackstone, Commentaries * 292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown * 72-74; Wilgus, Arrests Without a Warrant, 22 Mich.L.Rev. 541, 547-550, 686-688 (1924); Samuel v. Payne 1 Doug. 359, 99 Eng.Rep. 230 (K.B.1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng.Rep. 585 (K.B.1827)." 423 U.S., at 418-419, 96 S.Ct., at 825. 31 "The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears in almost all of the States in the form of express statutory authorization." Id., at 421-422, 96 S.Ct., at 826. 32 "This is the rule Congress has long directed its principal law enforcement officers to follow. Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances." Id., at 423, 96 S.Ct., at 827. The Court added in a footnote: "Until 1951, 18 U.S.C. § 3052 conditioned the warrantless arrest powers of the agents of the Federal Bureau of Investigation on there being reasonable grounds to believe that the person would escape before a warrant could be obtained. The Act of Jan. 10, 1951, c. 1221, § 1, 64 Stat. 1239, eliminated this condition." Id., at 423, n. 13, 96 S.Ct., at 827. 33 There are important differences between the common-law rules relating to searches and seizures and those that have evolved through the process of interpreting the Fourth Amendment in light of contemporary norms and conditions. For example, whereas the kinds of property subject to seizure under warrants had been limited to contraband and the fruits or instrumentalities of crime, see Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647, the category of property that may be seized, consistent with the Fourth Amendment, has been expanded to include mere evidence. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. Also, the prohibitions of the Amendment have been extended to protect against invasion by electronic eavesdropping of an individual's privacy in a phone booth not owned by him, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, even though the earlier law had focused on the physical invasion of the individual's person or property interests in the course of a seizure of tangible objects. See Olmstead v. United States, 277 U.S. 438, 466, 48 S.Ct. 564, 72 L.Ed.2d 944. Thus, this Court has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage. 34 The issue is not whether a defendant must stand trial, because he must do so even if the arrest is illegal. See United States v. Crews, 445 U.S. 463, at 474, 100 S.Ct. 1244, at 1251, 63 L.Ed.2d 537. 35 Those modern commentators who have carefully studied the early works agree with that assessment. See ALI, A Model Prop. Off. Draft Code of Pre-Arraignment Procedure 308 (1975) (hereinafter ALI Code); Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U.Pa.L.Rev. 499, 502 (1964); Comment, Forcible Entry to Effect a Warrantless Arrest—The Eroding Protection of the Castle, 82 Dick.L.Rev. 167, 168, n. 5 (1977); Note, The Constitutionality of Warrantless Home Arrests, 78 Colum.L.Rev. 1550, 1553 (1978) ("the major common-law commentators appear to be equally divided on the requirement of a warrant for a home arrest") (hereinafter Columbia Note); Recent Development, Warrantless Arrests by Police Survive a Constitutional Challenge—United States v. Watson, 14 Am.Crim.L.Rev. 193, 210-211 (1976). Accord, Miller v. United States, 357 U.S. 301, 307-308, 78 S.Ct. 1190, 1194-1195, 2 L.Ed.2d 1332; Accarino v. United States, 85 U.S.App.D.C. 394, 402, 179 F.2d 456, 464 (1949). 36 "Foremost among the titles to be found in private libraries of the time were the works of Coke, the great expounder of Magna Carta, and similar books on English liberties. The inventory of the library of Arthur Spicer, who died in Richmond County, Virginia, in 1699, included Coke's Institutes, another work on Magna Carta, and a 'Table to Cooks Reports.' The library of Colonel Daniel McCarty, a wealthy planter and member of the Virginia House of Burgesses who died in Westmoreland County in 1724, included Coke's Reports, an abridgment of Coke's Reports, Coke on Littleton, and 'Rights of the Comons of England.' Captain Charles Colston, who died in Richmond County, Virginia, in 1724, and Captain Christopher Cocke, who died in Princess Anne County, Virginia, in 1716, each had copies of Coke's Institutes. That these libraries were typical is suggested by a study of the contents of approximately one hundred private libraries in colonial Virginia, which revealed that the most common law title found in these libraries was Coke's Reports. They were typical of other colonies, too. Another study, of the inventories of forty-seven libraries throughout the colonies between 1652 and 1791, found that of all the books on either law or politics in these libraries the most common was Coke's Institutes (found in 27 of the 47 libraries). The second most common title was a poor second; it was Grotius' War and Peace, found in 16 of the libraries (even Locke's Two Treatises on Government appeared in only 13 of the libraries). "The popularity of Coke in the colonies is of no small significance. Coke himself had been at the eye of the storm in the clashes between King and Parliament in the early seventeenth century which did so much to shape the English Constitution. He rose to high office at the instance of the Crown—he was Speaker of the House of Commons and Attorney General under Queen Elizabeth, and James I made Coke first his Chief Justice of Common Pleas and then his Chief Justice of King's Bench. During this time Coke gained an unchallenged position as the greatest authority of his time on the laws of England, frequently burying an opponent with learned citations from early Year Books. Having been a champion of the Crown's interests, Coke (in a change of role that recalls the metamorphosis of Thomas a Becket) became instead the defender of the common law." A. Howard, The Road From Runnymede 118-119 (1968). (Footnotes omitted.) 37 "[N]either the Constable, nor any other can break open any house for the apprehension of the party suspected or charged with the felony. . . . " 4 E. Coke, Institutes * 177. Coke also was of the opinion that only a King's indictment could justify the breaking of doors to effect an arrest founded on suspicion, and that not even a warrant issued by a justice of the peace was sufficient authority. Ibid. He was apparently alone in that view, however. 38 1 R. Burn, The Justice of the Peace and Parish Officer 87 (6th ed. 1758) ("where one lies under probable suspicion only, and is not indicted, it seems the better opinion at this day (Mr. Hawkins says) that no one can justify the breaking open doors in order to apprehend him . . . "); M. Foster, Crown Law 321 (1762); 2 W. Hawkins, Pleas of the Crown 139 (6th ed. 1787): "But where one lies under a probable suspicion only, and is not indicted, it seems the better (d ) opinion at this day, That no one can justify the breaking open doors in order to apprehend him." The contrary opinion of Hale, see n. 41, infra, is acknowledged among the authorities cited in the footnote (d ). 39 1 E. East, Pleas of the Crown 322 (1806) ("[Y]et a bare suspicion of guilt against the party will not warrant a proceeding to this extremity [the breaking of doors], unless the officer be armed with a magistrate's warrant grounded on such suspicion. It will at least be at the peril of proving that the party so taken on suspicion was guilty."); 1 W. Russell, A Treatise on Crimes and Misdemeanors 745 (1819) (similar rule). 40 4 W. Blackstone, Commentaries * 292; 1 J. Chitty, A Practical Treatise on the Criminal Law 23 (1816); 4 H. Stephen, New Commentaries on the Laws of England 359 (1845). 41 1 M. Hale, Pleas of the Crown 583 (1736); 2 id., at 90-95. At page 92 of the latter volume, Hale writes that in the case where the constable suspects a person of a felony, "if the supposed offender fly and take house, and the door will not be opened upon demand of the constable and notification of his business, the constable may break the door, tho he have no warrant. 13 E. 4. 9. a." Although it would appear that Hale might have meant to limit warrantless home arrests to cases of hot pursuit, the quoted passage has not typically been read that way. 42 Apparently, the Yearbook in which the statement appears has never been fully translated into English. 43 That assessment is consistent with the description by this Court of the holding of that Yearbook case in Miller v. United States, 357 U.S., at 307, 78 S.Ct., at 1194: "As early as the 13th Yearbook of Edward IV (1461-1483), at folio 9, there is a recorded holding that it was unlawful for the sheriff to break the doors of a man's house to arrest him in a civil suit in debt or trespass, for the arrest was then only for the private interest of a party." 44 Thus, in Semayne's Case, 5 Co.Rep. 91a, 91b, 77 Eng.Rep. 194, 195 (K.B.1603), the court stated: "That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose; and although the life of man is a thing precious and favoured in law; so that although a man kills another in his defence, or kills one per infortun', without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels, for the great regard which the law has to a man's life; but if thieves come to a man's house to rob him, or murder, and the owner of his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing, and therewith agree 3 E. 3. Coron. 303, & 305. & 26 Ass. pl. 23. So it is held in 21 H. 7. 39. every one may assemble his friends and neighbours to defend his house against violence: but he cannot assemble them to go with him to the market, or elsewhere for his safeguard against violence: and the reason of all this is, because domus sua cuique est tutissimum refugium." (Footnotes omitted.) In the report of that case it is noted that although the sheriff may break open the door of a barn without warning to effect service of a writ, a demand and refusal must precede entry into a dwelling house. Id., at 91b, n. (c), 77 Eng.Rep., at 196, n. (c): "And this privilege is confined to a man's dwelling-house, or out-house adjoining thereto, for the sheriff on a fieri facias may break open the door of a barn standing at a distance from the dwelling-house, without requesting the owner to open the door, in the same manner as he may enter a close. Penton v. Brown, 2 Keb. 698, S.C. 1 Sid. 186." 45 "Now one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege." 2 Legal Papers of John Adams 142 (L. Wroth & H. Zobel eds. 1965). We have long recognized the relevance of the common law's special regard for the home to the development of Fourth Amendment jurisprudence. See, e. g., Weeks v. United States, 232 U.S. 383, 390, 34 S.Ct. 341, 343, 58 L.Ed. 652: "Judge Cooley, in his Constitutional Limitations, pp. 425, 426, in treating of this feature of our Constitution, said: 'The maxim that "every man's house is his castle," is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizen.' 'Accordingly,' says Lieber in his work on Civil Liberty and Self-Government, 62, in speaking of the English law in this respect, 'no man's house can be forcibly opened, or he or his goods be carried away after it has thus been forced, except in cases of felony, and then the sheriff must be furnished with a warrant, and take great care lest he commit a trespass. This principle is jealously insisted upon." Although the quote from Lieber concerning warrantless arrests in the home is on point for today's cases, it was dictum in Weeks. For that case involved a warrantless arrest in a public place, and a warrantless search of Week's home in his absence. 46 Twenty-three States authorize such entries by statute. See Ala.Code § 15-10-4 (1975); Alaska Stat.Ann. § 12.25.100 (1972); Ark.Stat.Ann. § 43-414 (1977); Fla.Stat. § 901.19 (1979); Haw.Rev.Stat. § 803-11 (1977); Idaho Code § 19-611 (1979); Ill.Rev.Stat., ch. 38, § 107—5(d) (1971); La.Code Crim.Proc.Ann., Art. 224 (West 1967); Mich.Comp.Laws § 764.21 (1970); Minn.Stat. § 629.34 (1978); Miss.Code Ann. § 99-3-11 (1973); Mo.Rev.Stat. § 544.200 (1978); Neb.Rev.Stat. § 29-411 (1975); Nev.Rev.Stat. § 171.138 (1977); N.Y.Crim.Proc.Law §§ 140.15(4), 120.80(4), (5) (McKinney 1971); N.C.Gen.Stat. § 15A-401(e) (1978); N.D.Cent.Code § 29-06-14 (1974); Ohio Rev.Code Ann. § 2935.12 (1975); Okla.Stat., Tit. 22, § 197 (1971); S.D.Comp.Laws Ann. § 23A-3-5 (1979); Tenn.Code Ann. § 40-807 (1975); Utah Code Ann. § 77-13-12 (Repl.1978); Wash.Rev.Code § 10.31.040 (1976). One State has authorized warrantless arrest entries by judicial decision. See Shanks v. Commonwealth, 463 S.W.2d 312, 315 (Ky.App.1971). A number of courts in these States, though not directly deciding the issue, have recognized that the constitutionality of such entries is open to question. See People v. Wolgemuth, 69 Ill.2d 154, 13 Ill.Dec. 40, 370 N.E.2d 1067 (1977), cert. denied, 436 U.S. 908, 98 S.Ct. 2243, 56 L.Ed.2d 408; State v. Ranker, 343 So.2d 189 (La.1977) (citing both State and Federal Constitutions); State v. Lasley, 306 Minn. 224, 236 N.W.2d 604 (1975), cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d 796; State v. Novak, 428 S.W.2d 585 (Mo.1968); State v. Page, 277 N.W.2d 112 (N.D.1979); State v. Max, 263 N.W.2d 685 (S.D.1978). 47 Four States prohibit warrantless arrests in the home by statute, see Ga.Code §§ 27-205, 27-207 (1978) (also prohibits warrantless arrests outside the home absent exigency); Ind.Code §§ 35-1-19-4, 35-1-19-6 (1976); Mont.Code Ann. § 46-6-401 (1979) (same as Georgia); S.C.Code § 23-15-60 (1976); 1 by state common law, see United States v. Hall, 468 F.Supp. 123, 131, n. 16 (E.D.Tex.1979); Moore v. State, 149 Tex.Crim. 229, 235-236, 193 S.W.2d 204, 207 (1946); and 10 on constitutional grounds, see n. 3, supra. 48 Connecticut, Delaware, Maine, Maryland, New Hampshire, New Jersey, New Mexico, Rhode Island, Vermont, Virginia and Wyoming. The courts of three of the above-listed States have recognized that the constitutionality of warrantless home arrest is subject to question. See State v. Anonymous, 34 Conn.Supp. 531, 375 A.2d 417 (Sup.Ct., App.Sess.1977); Nilson v. State, 272 Md. 179, 321 A.2d 301 (1974); Palmigiano v. Mullen, 119 R.I. 363, 377 A.2d 242 (1977). 49 See cases cited in n. 3, supra. 50 See cases cited in nn. 46, 48, supra. 51 See n. 2, supra. 52 See, e. g., Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 462-463, 89 L.Ed. 789. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). 53 The statute referred to in n. 32, supra, provides: "The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents of the Federal Bureau of Investigation of the Department of Justice may carry firearms, serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony." 18 U.S.C. § 3052. It says nothing either way about executing warrantless arrests in the home. See also ALI Code at 308; Columbia Note 1554-1555, n. 26. 54 There can be no doubt that Pitt's address in the House of Commons in March 1763 echoed and re-echoed throughout the Colonies: " 'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement! ' " Miller v. United States, 357 U.S., at 307, 78 S.Ct., at 1195. 55 The State of New York argues that the warrant requirement will pressure police to seek warrants and make arrests too hurriedly, thus increasing the likelihood of arresting innocent people; that it will divert scarce resources thereby interfering with the police's ability to do thorough investigations; that it will penalize the police for deliberate planning; and that it will lead to more injuries. Appellants counter that careful planning is possible and that the police need not rush to get a warrant, because if an exigency arises necessitating immediate arrest in the course of an orderly investigation, arrest without a warrant is permissible; that the warrant procedure will decrease the likelihood that an innocent person will be arrested; that the inconvenience of obtaining a warrant and the potential for diversion of resources is exaggerated by the State; and that there is no basis for the assertion that the time required to obtain a warrant would create peril. 1 For example, a constable could arrest for breaches of the peace committed outside his presence only under authority of a warrant. Bad Elk v. United States, 177 U.S. 529, 534-535, 20 S.Ct. 729, 731, 44 L.Ed. 874 (1900); 1 Burn 294; 2 Hale 90; 2 Hawkins 130. 2 The Court cites Burn for the proposition that home arrests on mere suspicion are invalid. Ante, at 595, n. 38. In fact, Burn appears to be of the opposite view. Burn contrasts the case of arrests by private citizens, which cannot be justified unless the person arrested was actually guilty of felony, with that of arrests by constables: "But a constable in such case may justify, and the reason of the difference is this: because that in the former case it is but a thing permitted to private persons to arrest for suspicion, and they are not punishable if they omit it, and therefore they cannot break open doors; but in case of a constable, he is punishable if he omit it upon complaint." 1 Burn 87-88 (emphasis in original). Burn apparently refers to a constable's duty to act without a warrant on complaint of a citizen. 3 The Court cites Pitt's March 1763 oration in the House of Commons as indicating an "overriding respect for the sanctity of the home." Ante, at 601, and n. 54. But this speech was in opposition to a proposed excise tax on cider. 15 Parliamentary History of England 1307 (1813). Nothing in it remotely suggests that Pitt objected to the constable's traditional power of warrantless entry into dwellings to arrest for felony. 4 See also North v. People, 139 Ill. 81, 105, 28 N.E. 966, 972 (1891) (Warrant Clause "does not abridge the right to arrest without warrant, in cases where such arrest could be lawfully made at common law before the adoption of the present constitution"); Wakely v. Hart, 6 Binn. 316, 319 (Pa.1814) (rules permitting arrest without a warrant are "principles of the common law, essential to the welfare of society, and not intended to be altered or impaired by the constitution. The whole section indeed was nothing more than an affirmance of the common law . . . "). 5 American Law Institute, Code of Criminal Procedure 254-255 (Off.Draft 1931) (hereinafter Code). 6 American Law Institute, A Model Code of Pre-Arraignment Procedure App. XI (Prop.Off.Draft 1975) (hereinafter Model Code). 7 Code §§ 21, 28; Model Code § 120.6(1). 8 See Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) (stating in dictum that officers could have entered hotel room without a warrant in order to make an arrest "for a crime committed in the presence of the arresting officer or for a felony of which he had reasonable cause to believe defendant guilty") (footnote omitted); Ker v. California, 374 U.S. 23, 38, 83 S.Ct. 1623, 1632, 10 L.Ed.2d 726 (1963) (plurality opinion); Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 1757, 20 L.Ed.2d 828 (1968). 9 One Court of Appeals had previously held such entries unconstitutional. Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456 (1949). 10 As I discuss infra, there may well be greater constitutional problems with nighttime entries. 11 Miller v. United States, 357 U.S. 301, 308, 78 S.Ct. 1190, 1195, 2 L.Ed.2d 1332 (1958); Semayne's Case, 5 Co.Rep. 91a, 77 Eng.Rep. 194 (K.B.1603); Dalton 427; 2 Hale 90; 2 Hawkins 138. 12 Model Code § 120.6(3). Cf. Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958); Coolidge v. New Hampshire, 403 U.S. 443, 480, 91 S.Ct. 2022, 2045, 29 L.Ed.2d 564 (1971). 13 I do not necessarily disagree with the Court's discussion of the quantum of probable cause necessary to make a valid home arrest. The Court indicates that only an arrest warrant, and not a search warrant, is required. Ante, at 602-603. To obtain the warrant, therefore, the officers need only show probable cause that a crime has been committed and that the suspect committed it. However, under today's decision, the officers apparently need an extra increment of probable cause when executing the arrest warrant, namely, grounds to believe that the suspect is within the dwelling. Ibid. 14 If the suspect flees or hides, of course, the intrusiveness of the entry will be somewhat greater; but the policeman's hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel.

01

445 U.S. 552 100 S.Ct. 1358 63 L.Ed.2d 622 Winfield L. ROBERTS, Petitioner,v.UNITED STATES. No. 78-1793. Argued Jan. 14, 15, 1980. Decided April 15, 1980. Syllabus Held : The District Court properly considered, as one factor in imposing consecutive sentences on petitioner who had pleaded guilty to two counts of using a telephone to facilitate the distribution of heroin, petitioner's refusal to cooperate with Government officials investigating a related criminal conspiracy to distribute heroin in which he was a confessed participant. Pp. 556-562. (a) No misinformation of constitutional magnitude was present in this case; petitioner rebuffed repeated requests for his cooperation over a period of three years and concedes that cooperation with the authorities is a "laudable endeavor" that bears a "rational connection to a defendant's willingness to shape up and change his behavior." By declining to cooperate, petitioner rejected an obligation of community life that should be recognized before rehabilitation can begin and protected his former partners in crime, thereby preserving his ability to resume criminal activities upon release. Pp. 556-558. (b) Nor can petitioner's failure to cooperate be justified on the basis of fears of physical retaliation and self-incrimination, or on the ground that the District Court punished him for exercising his Fifth Amendment privilege against self-incrimination. These arguments were raised for the first time in petitioner's appellate brief, neither petitioner nor his lawyer having offered any explanation to the sentencing court even though it was known that petitioner's intransigency would be used against him. Although the requirement of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, of specific warnings creates a limited exception to the rule that the privilege against self-incrimination is not self-executing and must be claimed, the exception does not apply outside the context of the inherently coercive custodial interrogation for which it was designed, and here there was no custodial interrogation. Petitioner volunteered his confession at his first interview with investigators, after Miranda warnings had been given and at a time when he was free to leave. For the next three years until the time when he received the sentence he now challenges, neither he nor his counsel—who were both fully apprised that the extent of petitioner's cooperation could be expected to affect his sentence—ever claimed that petitioner's unwillingness to cooperate was based upon the right to remain silent or the fear of self-incrimination. Pp. 559-562. 195 U.S.App.D.C. 1, 600 F.2d 815, affirmed. Stephen M. Shapiro, Washington, D. C., for respondent. Allan M. Palmer, Washington, D. C., for petitioner. Mr. Justice POWELL delivered the opinion of the Court. 1 The question is whether the District Court properly considered, as one factor in imposing sentence, the petitioner's refusal to cooperate with officials investigating a criminal conspiracy in which he was a confessed participant. 2 * Petitioner Winfield Roberts accompanied Cecilia Payne to the office of the United States Attorney for the District of Columbia one day in June 1975. Government surveillance previously had revealed that a green Jaguar owned by Payne was used to transport heroin within the District. Payne told investigators that she occasionally lent the Jaguar to petitioner, who was waiting outside in the hall. At Payne's suggestion, the investigators asked petitioner if he would answer some questions. Although petitioner was present voluntarily, the investigators gave him the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). They also told him that he was free to leave. When petitioner indicated that he would stay, the investigators asked whether he knew "Boo" Thornton, then the principal target of the heroin investigation. Petitioner admitted that he had delivered heroin to Thornton on several occasions. Confessing also that he had discussed drug transactions with Thornton in certain intercepted telephone conversations, petitioner explained the meaning of code words used in the conversations. When asked to name suppliers, however, petitioner gave evasive answers. Although the investigators warned petitioner that the extent of his cooperation would bear on the charges brought against him, he provided no further information. 3 Petitioner was indicted on one count of conspiring to distribute heroin, 21 U.S.C. §§ 841, 846, and four counts of using a telephone to facilitate the distribution of heroin, 21 U.S.C. § 843(b).1 He retained a lawyer, who rejected the Government's continued efforts to enlist petitioner's assistance. In March 1976, petitioner entered a plea of guilty to the conspiracy count and received a sentence of 4 to 15 years' imprisonment, 3 years' special parole, and a $5,000 fine. The Court of Appeals vacated the conviction on the ground that the terms of the plea agreement were inadequately disclosed to the District Court. United States v. Roberts, 187 U.S.App.D.C. 90, 570 F.2d 999 (1977). 4 On remand, petitioner pleaded guilty to two counts of telephone misuse under an agreement that permitted the Government to seek a substantial sentence. The Government filed a memorandum recommending two consecutive sentences of 16 to 48 months each and a $5,000 fine.2 The memorandum cited petitioner's previous conviction for 10 counts of bank robbery, his voluntary confession, and his subsequent refusal to name suppliers. The memorandum also emphasized the tragic social consequences of the heroin trade. Since petitioner was not himself an addict and had no familial responsibilities, the Government theorized that he sold heroin to support his extravagant lifestyle while unemployed and on parole. The Government concluded that stern sentences were necessary to deter those who would traffic in deadly drugs for personal profit. 5 At the sentencing hearing, defense counsel noted that petitioner had been incarcerated for two years pending appeal and that codefendant Thornton had been sentenced to probation. Counsel argued that petitioner should receive concurrent sentences that would result in his immediate release. He directed the court's attention to petitioner's voluntary confession, explaining that petitioner had refused to identify other members of the conspiracy because he "wasn't that involved in it." App. 30. The prosecutor responded that the request for probation was "ironic" in light of petitioner's refusal to cooperate in the investigation over the course of "many, many years, knowing what he faces." Id., at 36. Thus, the Government could not ask the court "to take into account some extenuating and mitigating circumstances, that the defendant has cooperated. . . . " Ibid. Stressing the seriousness of the offense and the absence of excuse or mitigation, the Government recommended a substantial prison term. 6 The District Court imposed consecutive sentences of one to four years on each count and a special parole term of three years, but it declined to impose a fine. The court explained that these sentences were appropriate because petitioner was on parole from a bank robbery conviction at the time of the offenses, and because he was a dealer who had refused to cooperate with the Government.3 Petitioner again appealed, contending for the first time that the sentencing court should not have considered his failure to cooperate. The Court of Appeals for the District of Columbia Circuit vacated the special parole term but otherwise affirmed the judgment. 195 U.S.App.D.C. 1, 600 F.2d 815 (1979). We granted certiorari, 444 U.S. 822, 100 S.Ct. 42, 62 L.Ed.2d 29 (1979), and we now affirm. II 7 The principles governing criminal sentencing in the United States district courts require no extensive elaboration. Congress has directed that 8 "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. § 3577. 9 This Court has reviewed in detail the history and philosophy of the modern conception that "the punishment should fit the offender and not merely the crime." Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949); see United States v. Grayson, 438 U.S. 41, 45-50, 98 S.Ct. 2610, 2613-2616, 57 L.Ed.2d 582 (1978). Two Terms ago, we reaffirmed the "fundamental sentencing principle" that " 'a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.' " Id., at 50, 98 S.Ct., at 2615-2616, quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). See also Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937). We have, however, sustained due process objections to sentences imposed on the basis of "misinformation of constitutional magnitude." United States v. Tucker, supra, at 447, 92 S.Ct., at 591; see Townsend v. Burke, 334 U.S. 736, 740-741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). 10 No such misinformation was present in this case. The sentencing court relied upon essentially undisputed facts. There is no question that petitioner rebuffed repeated requests for his cooperation over a period of three years. Nor does petitioner contend that he was unable to provide the requested assistance. Indeed, petitioner concedes that cooperation with the authorities is a "laudable endeavor" that bears a "rational connection to a defendant's willingness to shape up and change his behavior. . . . " Brief for Petitioner 17.4 Unless a different explanation is provided, a defendant's refusal to assist in the investigation of ongoing crimes gives rise to an inference that these laudable attitudes are lacking. 11 It hardly could be otherwise. Concealment of crime has been condemned throughout our history. The citizen's duty to "raise the 'hue and cry' and report felonies to the authorities," Branzburg v. Hayes, 408 U.S. 665, 696, 92 S.Ct. 2646, 2664, 33 L.Ed.2d 626 (1972), was an established tenet of Anglo-Saxon law at least as early as the 13th century. 2 W. Holdsworth, History of English Law 101-102 (3d ed. 1927); 4 id., at 521-522; see Statute of Westminster First, 3 Edw. 1, ch. 9, p. 43 (1275); Statute of Westminster Second, 13 Edw. 1, chs. 1, 4, and 6, pp. 112-115 (1285). The first Congress of the United States enacted a statute imposing criminal penalties upon anyone who, "having knowledge of the actual commission of [certain felonies,] shall conceal, and not as soon as may be disclose and make known the same to [the appropriate] authority . . . ." Act of Apr. 30, 1790, § 6, 1 Stat. 113.5 Although the term "misprision of felony" now has an archaic ring, gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship. 12 This deeply rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself. Unless his silence is protected by the privilege against self-incrimination, see Part III, infra, the criminal defendant no less than any other citizen is obliged to assist the authorities. The petitioner, for example, was asked to expose the purveyors of heroin in his own community in exchange for a favorable disposition of his case. By declining to cooperate, petitioner rejected an "obligatio[n] of community life" that should be recognized before rehabilitation can begin. See Hart, The Aims of the Criminal Law, 23 Law & Contemp.Prob. 401, 437 (1958). Moreover, petitioner's refusal to cooperate protected his former partners in crime, thereby preserving his ability to resume criminal activities upon release. Few facts available to a sentencing judge are more relevant to " 'the likelihood that [a defendant] will transgress no more, the hope that he may respond to rehabilitative efforts to assist with a lawful future career, [and] the degree to which he does or does not deem himself at war with his society.' " United States v. Grayson, supra, 438 U.S., at 51, 98 S.Ct., at 2616, quoting United States v. Hendrix, 505 F.2d 1233, 1236 (CA2 1974). III 13 Petitioner does not seriously contend that disregard for the obligation to assist in a criminal investigation is irrelevant to the determination of an appropriate sentence. He rather contends that his failure to cooperate was justified by legitimate fears of physical retaliation and self-incrimination. In view of these concerns, petitioner asserts that his refusal to act as an informer has no bearing on his prospects for rehabilitation. He also believes that the District Court punished him for exercising his Fifth Amendment privilege against self-incrimination. 14 These arguments would have merited serious consideration if they had been presented properly to the sentencing judge. But the mere possibility of unarticulated explanations or excuses for antisocial conduct does not make that conduct irrelevant to the sentencing decision. The District Court had no opportunity to consider the theories that petitioner now advances, for each was raised for the first time in petitioner's appellate brief. Although petitioner knew that his intransigency would be used against him, neither he nor his lawyer offered any explanation to the sentencing court. Even after the prosecutor observed that the failure to cooperate could be viewed as evidence of continuing criminal intent, petitioner remained silent. 15 Petitioner insists that he had a constitutional right to remain silent and that no adverse inferences can be drawn from the exercise of that right. We find this argument singularly unpersuasive. The Fifth Amendment privilege against compelled self-incrimination is not self-executing. At least where the Government had no substantial reason to believe that the requested disclosures are likely to be incriminating, the privilege may not be relied upon unless it is invoked in a timely fashion. Garner v. United States, 424 U.S. 648, 653-655, 96 S.Ct. 1178, 1182, 47 L.Ed.2d 370 (1976); United States v. Kordel, 397 U.S. 1, 7-10, 90 S.Ct. 763, 766-768, 25 L.Ed.2d 1 (1970); see United States v. Mandujano, 425 U.S. 564, 574-575, 96 S.Ct. 1768, 1775, 48 L.Ed.2d 212 (1976) (opinion of BURGER, C. J.); id., at 591-594, 96 S.Ct., at 1783-1785 (BRENNAN, J., concurring in judgment).6 16 In this case, as in Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560 (1927), petitioner "did not assert his privilege or in any manner suggest that he withheld his testimony because there was any ground for fear of self-incrimination. His assertion of it here is evidently an afterthought." The Court added in Vajtauer that the privilege "must be deemed waived if not in some manner fairly brought to the attention of the tribunal which must pass upon it." Ibid. Thus, if petitioner believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate.7 17 Petitioner would avoid the force of this elementary rule by arguing that Miranda warnings supplied additional protection for his right to remain silent. But the right to silence described in those warnings derives from the Fifth Amendment and adds nothing to it. Although Miranda's requirement of specific warnings creates a limited exception to the rule that the privilege must be claimed, the exception does not apply outside the context of the inherently coercive custodial interrogations for which it was designed. The warnings protect persons who, exposed to such interrogation without the assistance of counsel, otherwise might be unable to make a free and informed choice to remain silent. Miranda v. Arizona, 384 U.S., at 475-476, 86 S.Ct., at 1628; see Garner v. United States, supra, 424 U.S., at 657, 96 S.Ct., at 1183.8 18 There was no custodial interrogation in this case. Petitioner volunteered his confession at his first interview with investigators in 1975, after Miranda warnings had been given and at a time when he was free to leave. He does not claim that he was coerced.9 Thereafter, petitioner was represented by counsel who was fully apprised—as was petitioner—that the extent of petitioner's cooperation could be expected to affect his sentence. Petitioner did not receive the sentence he now challenges until 1978. During this entire period, neither petitioner nor his lawyer ever claimed that petitioner's unwillingness to provide information vital to law enforcement was based upon the right to remain silent or the fear of self-incrimination. 19 Petitioner has identified nothing that might have impaired his " 'free choice to admit, to deny, or to refuse to answer.' " Garner v. United States, supra, 424 U.S., at 657, 96 S.Ct., at 1183, quoting Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166 (1941). His conduct bears no resemblance to the "insolubly ambiguous" postarrest silence that may be induced by the assurances contained in Miranda warnings. Cf. Doyle v. Ohio, 426 U.S. 610, 617-618, 96 S.Ct. 2240, 2244-45, 49 L.Ed.2d 91 (1976). We conclude that the District Court committed no constitutional error. If we were to invalidate petitioner's sentence on the record before us, we would sanction an unwarranted interference with a function traditionally vested in the trial courts. See Dorszynski v. United States, 418 U.S. 424, 440-441, 94 S.Ct. 3042, 3051, 41 L.Ed.2d 855 (1974).10 Accordingly, the judgment of the Court of Appeals is 20 Affirmed. 21 Mr. Justice BRENNAN, concurring. 22 I join the Court's opinion. 23 The principal divisive issue in this case is whether petitioner's silence should have been understood to imply continued solicitude for his former criminal enterprise, rather than assertion of the Fifth Amendment right against self-incrimination or fear of retaliation. I agree with the Court that the trial judge cannot be faulted for drawing a negative inference from petitioner's noncooperation when petitioner failed to suggest that other, neutral, inferences were available. And because the Government questioning to which he failed to respond was not directed at incriminating him, petitioner may not stand upon a Fifth Amendment privilege that he never invoked at the time of his silence. See United States v. Mandujano, 425 U.S. 564, 589-594, 96 S.Ct. 1768, 1782, 48 L.Ed.2d 212 (1976) (BRENNAN, J., concurring in the judgment); Garner v. United States, 424 U.S. 648, 655-661, 96 S.Ct. 1178, 1182-1186, 47 L.Ed.2d 370 (1976); Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 47 L.Ed.2d 370 (1927).* 24 Nevertheless, the problem of drawing inferences from an ambiguous silence is troubling. As a matter of due process, an offender may not be sentenced on the basis of mistaken facts or unfounded assumptions. Townsend v. Burke, 334 U.S. 736, 740-741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948); see United States v. Grayson, 438 U.S. 41, 55, 98 S.Ct. 2610, 2618, 57 L.Ed.2d 582 (1978) (STEWART, J., dissenting) (collateral inquiry may be required before sentence is enhanced because of trial judge's unreviewable impression that defendant perjured himself at trial). It is of comparable importance to assure that a defendant is not penalized on the basis of groundless inferences. At the least, sentencing judges should conduct an inquiry into the circumstances of silence where a defendant indicates before sentencing that his refusal to cooperate is prompted by constitutionally protected, or morally defensible, motives. Furthermore, especially where conviction is based upon a guilty plea, it may be advisable for trial judges to raise the question of motive themselves when presented with a prosecutorial recommendation for severity due to an offender's noncooperation. During the Rule 32 allocution before sentencing, Fed.Rule Crim.Proc. 32(a)(1), the defendant could be asked on the record whether he has a reasonable explanation for his silence; if a justification were proffered, the judge would then proceed to determine its veracity and reasonableness. Such an allocution procedure would reduce the danger of erroneous inference and provide a record to support sentencing against subsequent challenge. Cf. McCarthy v. United States, 394 U.S. 459, 466-467, 89 S.Ct. 1166, 1170-1171, 22 L.Ed.2d 418 (1969) (Fed.Rule Crim.Proc. 11 allocution procedure). 25 Mr. Justice MARSHALL, dissenting. 26 The Court today permits a term of imprisonment to be increased because of a defendant's refusal to identify others involved in criminal activities—a refusal that was not unlawful and that may have been motivated by a desire to avoid self-incrimination or by a reasonable fear of reprisal. I do not believe that a defendant's failure to inform on others may properly be used to aggravate a sentence of imprisonment, and accordingly, I dissent. 27 The majority does not dispute that a failure to disclose the identity of others involved in criminal activity may often stem from a desire to avoid self-incrimination. This case is an excellent illustration of that possibility. The prosecutor asked petitioner "to identify the person or persons from whom he was getting the drugs, and the location, and to lay out the conspiracy and identify other co-conspirators who were involved with them." App. 36. Disclosure of this information might well have exposed petitioner to prosecution on additional charges.1 He was never offered immunity from such prosecution. Petitioner's right to refuse to incriminate himself on additional charges was not, of course, extinguished by his guilty plea. 28 There can be no doubt that a judge would be barred from increasing the length of a jail sentence because of a defendant's refusal to cooperate based on the constitutional privilege against self-incrimination. In such a case, the threat of a longer sentence of imprisonment would plainly be compulsion within the meaning of the Fifth Amendment. Cf. McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). Such an aggravation of sentence would amount to an impermissible penalty imposed solely because of the defendant's assertion of the Fifth Amendment privilege. 29 I also believe that it would be an abuse of discretion for a judge to use a defendant's refusal to become an informer to increase the length of a sentence when the refusal was motivated by a fear of retaliation.2 In such a case, the failure to identify other participants in the crime is irrelevant to the defendant's prospects for rehabilitation, see ante, at 558, and bears no relation to any of the legitimate purposes of sentencing. SeeUnited States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). 30 In this case, then, petitioner's refusal to provide the requested information was lawful3 and may have been motivated by the possibility of self-incrimination or a reasonable fear of reprisal. The majority acknowledges that these claims "would have merited serious consideration if they had been presented properly to the sentencing judge." Ante, at 559. Because petitioner did not expressly state these grounds to the sentencing judge, however, the Court indulges the assumption that petitioner's refusal was motivated by a desire to "preserv[e] his ability to resume criminal activities upon release." Ante, at 558. I am at a loss to discern any evidentiary basis for this assumption.4 And I reject the Court's harsh and rigid approach to the issue of waiver, especially in a context in which it was hardly clear that reasons for petitioner's failure to cooperate had to be identified before the sentencing judge.5 31 Furthermore, the bare failure to cooperate in an investigation of others cannot, without further inquiry, justify a conclusive negative inference about "the meaning of that conduct with respect to [the defendant's] prospects for rehabilitation and restoration to a useful place in society." United States v. Grayson, supra, at 55, 98 S.Ct., at 2618. A fear of reprisal against one's self or one's family or a desire to avoid further self-incrimination are equally plausible explanations for such conduct. Even the desire to "do his own time" without becoming a police informer might explain petitioner's behavior without necessarily indicating that he intended to "resume criminal activities upon [his] release." Ante, at 558. The inference that petitioner was a poor candidate for rehabilitation could not be justified without additional information.6 32 The enhancement of petitioner's sentence, then, was impermissible because it may have burdened petitioner's exercise of his constitutional rights or been based on a factor unrelated to the permissible goals of sentencing. In addition, it represented an improper involvement of the judicial office in the prosecutorial function that should be corrected through our supervisory power over the federal courts.7 33 The usual method for obtaining testimony which may be self-incriminatory is through a grant of immunity from prosecution. See 18 U.S.C. § 6001 et seq. (1976 ed. and Supp. II). Prosecutors would have little incentive to offer defendants immunity for their testimony if they could achieve the same result without giving up the option to prosecute. There is no suggestion here that an offer of immunity was ever extended to petitioner. If a defendant knows his silence may be used against him to enhance his sentence, he may be put to an unfair choice. He must either give incriminating information with no assurance that he will not be prosecuted on the basis of that information, or face the possibility of an increased sentence because of his noncooperation. Since a prosecutor may overcome a Fifth Amendment claim through an offer of immunity, I see no reason to put defendants to such a choice. 34 A second method available to the prosecutor for obtaining a defendant's testimony against others is the plea-bargaining process. The Court has upheld that process on the theory that the relative equality of bargaining power between the prosecutor and the defendant prevents the process from being fundamentally unfair. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). But if the judge can be counted on to increase the defendant's sentence if he fails to cooperate, the balance of bargaining power is tipped in favor of the prosecution. Not only is the prosecutor able to offer less in exchange for cooperation, but a defendant may agree for fear of incurring the displeasure of the sentencing judge. To insure that defendants will not be so intimidated into accepting plea bargains, federal judges are forbidden from participating in the bargaining process. See Fed.Rule Crim.Proc. 11(e)(1); ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.3(a) (App.Draft 1968). As Judge Bazelon observed below: "The trial judge, whose impartiality is a cornerstone of our criminal justice system, may be tempted, under the guise of exercising discretion in sentencing[,] to join forces with the prosecutor in securing the defendant's cooperation." 195 U.S.App.D.C. 1, 3, 600 F.2d 815, 817 (1979). I do not believe that we should allow that possibility. 35 I find disturbing the majority's willingness to brush aside these serious objections to the propriety of petitioner's sentence on the strength of "the duty to report known criminal behavior," ante, at 558. According to the Court, petitioner's refusal to become an informer was a rejection of a "deeply rooted social obligation," ibid. All citizens apparently are "obliged to assist the authorities" in this way, and petitioner's failure to do so was not only "a badge of irresponsible citizenship," but constituted "antisocial conduct" as well. Ante, at 558, 559. 36 The Court supports its stern conclusions about petitioner's civic duty only by reference to the concepts of "hue and cry" and "misprision of felony." Those concepts were developed in an era in which enforcement of the criminal law was entrusted to the general citizenry rather than to an organized police force.8 But it is unnecessary to discuss in detail the historical context of such concepts, so different from our present-day society, in order to reject the Court's analysis. American society has always approved those who own up to their wrongdoing and vow to do better, just as it has admired those who come to the aid of the victims of criminal conduct. But our admiration of those who inform on others has never been as unambiguous as the majority suggests. The countervailing social values of loyalty and personal privacy have presented us from imposing on the citizenry at large a duty to join in the business of crime detection. If the Court's view of social mores were accurate, it would be hard to understand how terms such as "stool pigeon," "snitch," "squealer," and "tattletale" have come to be the common description of those who engage in such behavior. 37 I do not, of course, suggest that those who have engaged in criminal activity should refuse to cooperate with the authorities. The informer plays a vital role in the struggle to check crime, especially the narcotics trade. We could not do without him. In recognition of this role, it is fully appropriate to encourage such behavior by offering leniency in exchange for "cooperation."9 Cooperation of that sort may be a sign of repentance and the beginning of rehabilitation.10 But our Government has allowed its citizens to decide for themselves whether to enlist in the enterprise of enforcing the criminal laws; it has never imposed a duty to do so, as the Court's opinion suggests. I find no justification for creating such a duty in this case and applying it only to persons about to be sentenced for a crime. 38 In fact the notion that citizens may be compelled to become informers is contrary to my understanding of the fundamental nature of our criminal law. Some legal systems have been premised on the obligation of an accused to answer all questions put to him. In other societies law-abiding behavior is encouraged by penalizing citizens who fail to spy on their neighbors or report infractions. Our country, thankfully, has never chosen that path. As highly as we value the directives of our criminal laws, we place their enforcement in the hands of public officers, and we do not give those officers the authority to impress the citizenry into the prosecutorial enterprise. By today's decision, the Court ignores this precept, and it does so in a setting that both threatens Fifth Amendment rights and encourages arbitrary and irrational sentencing. 1 Petitioner's intercepted conversations with Thornton apparently could have provided the basis for 13 counts of unlawful use of a telephone. App. 36. 2 The maximum sentence on each count was four years' imprisonment and a $30,000 fine. 21 U.S.C. § 843(c). 3 Before imposing sentence, the court explained: "Mr. Roberts, we have considered your case very carefully. We have noted again you were on parole from a bank robbery conviction, which you have had prior involvement with the law. In this case you were clearly a dealer, but you had an opportunity and failed to cooperate with the Government." App. 40. 4 See, e. g., ABA Project on Standards for Criminal Justice, Pleas of Guilty § 1.8(a)(v) (App. Draft 1968); id., at 48-49; Lumbard, Sentencing and Law Enforcement, 40 F.R.D. 406, 413-414 (1966); cf. R. Cross, The English Sentencing System 170 (2d ed. 1975). We doubt that a principled distinction may be drawn between "enhancing" the punishment imposed upon the petitioner and denying him the "leniency" he claims would be appropriate if he had cooperated. The question for decision is simply whether petitioner's failure to cooperate is relevant to the currently understood goals of sentencing. We do note, however, that Judge MacKinnon, author of the opinion reversing petitioner's first conviction, observed on the basis of his "complete familiarity with the facts of this entire case" that the petitioner's current sentence is a "very light" one. 195 U.S.App.D.C. 1, 9, 600 F.2d 815, 823 (1979) (separate statement on denial of rehearing en banc). The sentence of two to eight years' imprisonment certainly was not a severe penalty for a "substantial drug distributor," ibid., who plied his trade while on parole from a prior conviction for bank robbery. 5 The statute, as amended, is still in effect. 18 U.S.C. § 4. It has been construed to require "both knowledge of a crime and some affirmative act of concealment or participation." See Branzburg v. Hayes, 408 U.S. 665, 696, n. 36, 92 S.Ct. 2646, 2664, n. 36, 33 L.Ed.2d 626 (1972). 6 The Court recognized in Garner v. United States, 424 U.S., at 656-657, 96 S.Ct., at 1183-1184, that this rule is subject to exception when some coercive factor prevents an individual from claiming the privilege or impairs his choice to remain silent. No such factor has been identified in this case. See p. 561, infra. 7 See Garner v. United States, supra, 424 U.S., at 658, n. 11, 96 S.Ct., at 1184, n. 11; Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951); Mason v. United States, 244 U.S. 362, 364-366, 37 S.Ct. 621, 622, 61 L.Ed. 1198 (1917); United States v. Vermeulen, 436 F.2d 72, 76-77 (CA2 1970), cert. denied, 402 U.S. 911, 91 S.Ct. 1390, 28 L.Ed.2d 653 (1971). It is the duty of a court to determine the legitimacy of a witness' reliance upon the Fifth Amendment. Rogers v. United States, 340 U.S. 367, 374-375, 71 S.Ct. 438, 442-443, 95 L.Ed. 344 (1951). A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give. 8 In United States v. Washington, 431 U.S. 181, 187, n. 5, 97 S.Ct. 1814, 1819, n. 5, 52 L.Ed.2d 238 (1977), the Court explained that "[a]ll Miranda's safeguards, which are designed to avoid the coercive atmosphere, rest on the overbearing compulsion which the Court thought was caused by isolation of a suspect in police custody." 9 The District Court found that petitioner freely waived his Miranda rights when he first confessed his involvement in the conspiracy. Tr. 40 (Oct. 17, 1975); see App. 16, n. 4. 10 The dissenting opinion asserts that the record reflects an "improper involvement of the judicial office in the prosecutorial function." Post, at 567. We find no basis for this contention. The District Court did not participate in the plea-bargaining process; it merely undertook a retrospective review of petitioner's character, record, and criminal conduct in accordance with applicable law. 18 U.S.C. § 3577; Fed.Rule Crim.Proc. 32(c). And a defendant who failed even to raise the possibility of self-incrimination or retaliation over a course of three years is hardly in a position to complain that he was "put to an unfair choice." Post, at 568. * When the Government actually seeks to incriminate the subject of questioning, failure to invoke the Fifth Amendment privilege is reviewed under the stringent "knowing and completely voluntary waiver" standard. United States v. Mandujano, 425 U.S., at 593, 96 S.Ct., at 1784 (BRENNAN, J., concurring in judgment). But when it is only the subject who is reasonably aware of the incriminating tendency of the questions, it is his responsibility to put the Government on notice by formally availing himself of the privilege. Id., at 589-594, 96 S.Ct., at 1782-1785; Garner v. United States, 424 U.S., at 655, 96 S.Ct., at 1182. At that point, the Government may either cease questioning or continue under a grant of immunity. 1 The prosecutor stated at the sentencing hearing that the Government's initial offer of leniency in exchange for petitioner's cooperation was made on the assumption that he was a relatively minor figure in the conspiracy. The Government argued for lengthy consecutive sentences, however, because "we were shown to be wrong" about that assumption. It seems plain that if petitioner had provided the information requested, he would have incriminated himself on additional charges. 2 In determining whether a refusal to cooperate can be taken into consideration when based on a fear of reprisal, the relevant inquiry, of course, is whether the defendant in fact has a subjective fear, not whether the fear is objectively reasonable. It is when the defendant is actually afraid of reprisal that his failure to cooperate has no relevance to the legitimate purpose of sentencing. 3 The Court refers to the ancient offense of misprision of felony, ante, at 557-558 but as its own discussion shows, petitioner could not have been punished under 18 U.S.C. § 4. See ante, at 558, n. 5. The Government has never contended that petitioner's behavior was other than lawful. A discussion of the continued vitality of laws making it a crime to fail to report criminal behavior is unnecessary to this case; I observe only that such laws have fallen into virtually complete disuse, a development that reflects a deeply rooted social perception that the general citizenry should not be forced to participate in the enterprise of crime detection. See Note, 27 Hastings L.J. 175, 181-187 (1975); Note, 23 Emory L.J. 1095 (1974). Cf. Glazebrook, Misprision of Felony—Shadow or Phantom?, 8 Am.J.Legal Hist. 189, 283 (1964). As Mr. Chief Justice Marshall stated: "It may be the duty of a citizen to accuse every offender, and to proclaim every offense which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man." Marbury v. Brooks, 7 Wheat. 556, 575-576, 5 L.Ed. 522 (1822). 4 Indeed, the record hardly supports the Court's characterization of petitioner's behavior as "intransigency." Ante, at 559. Except for his refusal to identify additional participants, petitioner was quite helpful. He voluntarily accompanied Ms. Payne to the office of the United States Attorney. At that time, as the Government conceded at the sentencing hearing, "we had no idea of the identity of who it was who was using that green Jaguar automobile to ferry narcotics about the city." App. 35. Ms. Payne said she lent the car to petitioner, and he agreed to be interviewed. At that initial interview, he confessed, implicated a co-conspirator, and voluntarily explained the meaning of code words used in the conspiracy. The Court also relies on Judge MacKinnon's assertion that the sentence was "very light" for a "substantial drug distributor." Ante, at 557, n. 4. Of course, petitioner did not plead guilty to conspiracy or to distribution of heroin, but to two counts of unlawful use of a telephone to facilitate the distribution of heroin. Each count was punishable by a maximum of four years' imprisonment and a $30,000 fine, and petitioner was sentenced to consecutive 1- to 4-year terms. At the sentencing hearing, petitioner's counsel stated that he had been unable to find a single case "in which any federal judge has ever given consecutive sentences for two or more phone counts." App. 28. The Government has never challenged this assertion. 5 The sentencing hearing took place on April 21 1978. At that time, there was no settled law on the question whether failure to cooperate could be considered as an aggravating factor in sentencing. Compare United States v. Garcia, 544 F.2d 681, 684-686 (CA3 1976) (improper factor), and United States v. Rogers, 504 F.2d 1079 (CA5 1974) (same), with United States v. Chaidez-Castro, 430 F.2d 766 (CA7 1970) (proper factor). Nor was there any rule that a defendant was required to identify reasons for his failure to cooperate. For the Court to hold in these circumstances that the defendant's silence amounted to "an intentional relinquishment or abandonment of a known right or privilege," Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), seems to me extraordinarily stern in light of the Court's traditional indulgence of " 'every reasonable presumption against waiver' of fundamental constitutional rights." Ibid. (citation omitted). 6 In this respect, petitioner's conduct was quite different from the deliberate perjury involved in United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). Perjury is itself a serious crime, a " 'Manipulative defiance of the law,' " id., at 51, 98 S.Ct., at 2616, quoting United States v. Hendrix, 505 F.2d 1233, 1236 (CA2 1974), that corrupts the trial process. 7 As the Court notes, 18 U.S.C. § 3577 provides that "[n]o limitation shall be placed on the information . . . which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." This statute, however, was merely a codification of the sentencing standards set forth in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Nothing in the statute or its legislative history suggests a congressional intention to overturn or limit this Court's historic powers of supervision over the conduct of criminal cases in the federal courts. See Mesarosh v. United States, 352 U.S. 1, 14, 77 S.Ct. 1, 8, 1 L.Ed.2d 1 (1956). There is no warrant for the conclusion that 18 U.S.C. § 3577, which was designed to codify existing judicial practices, operates as a bar to the use of those supervisory powers to safeguard the Fifth Amendment privilege or to protect against irrational sentencing. 8 Cf. F. Pollock & F. Maitland, The History of English Law 582-583 (2d ed. 1909). 9 The majority expresses "doubt that a principled distinction may be drawn between 'enhancing' the punishment imposed upon the petitioner and denying him the 'leniency' he claims would be appropriate if he cooperated." Ante, at 557, n. 4. But as Judge Lumbard has stated: "It is one thing to extend leniency to a defendant who is willing to cooperate with the government; it is quite another thing to administer additional punishment to a defendant who by his silence has committed no additional offense." United States v. Ramos, 572 F.2d 360, 363, n. 2 (CA2 1978) (concurring opinion). At the most, the distinction may be difficult to administer; it is certainly a principled one, appearing in similar form in several areas of the law. For example, a distinction has been recognized between extending leniency to a defendant who pleads guilty and augmenting the sentence of a defendant who elects to stand trial. See, e. g., United States v. Araujo, 539 F.2d 287 (CA2 1976); United States v. Derrick, 519 F.2d 1 (CA6 1975); United States v. Stockwell, 472 F.2d 1186 (CA9 1973); United States v. Thompson, 476 F.2d 1196, 1201 (CA7 1973); Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969). Writing for the Court, Mr. Justice POWELL relied in Maher v. Roe, 432 U.S. 464, 475-477, 97 S.Ct. 2376, 2383, 53 L.Ed.2d 484 (1977), on a closely analogous distinction "between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." (In certain circumstances, of course, "state encouragement of an alternative activity" may also be constitutionally impermissible. See id., at 482-490, 97 S.Ct. at 2383 (BRENNAN, J., dissenting); id., at 454-462, 97 S.Ct., at 2394-2398 (MARSHALL, J., dissenting). In this case, however, it is agreed that no constitutional objection would be raised by an offer of leniency made to induce cooperation on the part of a defendant.) 10 Petitioner agrees that the extent of a defendant's cooperation with prosecuting authorities may be taken into account in granting leniency. Cooperation, like confession, may be relevant to whether the defendant has taken an initial step toward rehabilitation. The corollary inference, however, that failure to inform on others means that rehabilitation is unlikely, does not necessarily follow. As the United States Court of Appeals for the Second Circuit has explained in a similar setting: "[W]hile it is true that a defendant's lack of desire for rehabilitation may properly be considered in imposing sentence, to permit the sentencing judge to infer such lack of desire from a defendant's refusal to provide testimony would leave little force to the rule that a defendant may not be punished for exercising his right to remain silent. Moreover, we question how much a refusal to testify indicates an absence of rehabilitative desire, given that defendants often provide such testimony simply to get back at their former associates or to obtain a better deal from the Government. In any event, refusal to testify, particularly in narcotics cases, is more likely to be the result of well-founded fears of reprisal to the witness or his family." DiGiovanni v. United States, 596 F.2d 74, 75 (1979).

01

445 U.S. 715 100 S.Ct. 1450 63 L.Ed.2d 739 Cecil D. ANDRUS, Secretary of Interior, Petitioner,v.State of IDAHO et al. No. 79-260. Argued Feb. 25, 1980. Decided April 16, 1980. Syllabus The Carey Act of 1894, in order to aid covered States in the reclamation of desert lands, "authorize[s] and empower[s]" the Secretary of the Interior (Secretary), with the President's approval, upon proper application by a State to donate, grant, and patent such desert lands, not exceeding a specified acreage, as the State should cause to be irrigated, reclaimed, and occupied, provided however, that the lands may be restored to the public domain if the requirements as to reclamation are not satisfied within stated time limits. Under 43 U.S.C. § 643, the Secretary was also authorized, upon request of a State, to withdraw desert lands temporarily from the public domain prior to the State's submission of a formal plan under the Carey Act. Acting pursuant to 43 U.S.C. § 643, Idaho requested that a certain tract of land be temporarily withdrawn from the public domain pending the submission of a proposed development plan under the Act. The Idaho Office of the Bureau of Land Management rejected the application in part because some of the lands requested had already been withdrawn for other purposes, including a portion being used as a stock driveway. Idaho appealed to the Interior Board of Land Appeals with respect to the lands previously withdrawn for stock-driveway purposes, and also petitioned the Board for reclassification of the stock-driveway lands as suitable for use under the Act. Ultimately, the Board affirmed the rejection of Idaho's Carey Act application and returned the case to the Bureau of Land Management for initial action on the petition for reclassification of the stock-driveway lands and for further action on the remaining lands covered by the application for temporary withdrawal. Meanwhile, Idaho filed suit in Federal District Court for a declaration of its rights under the Act. That court held that the State was entitled to up to 2.4 million acres of desert land for which the Secretary was obligated to contract with the State pursuant to the terms of the Act; that the Act, however, was not a grant in praesenti, and the State did not have an absolute right to the particular desert lands that it happened to select; and that if the lands had been withdrawn for another public use pursuant to another statute, the State's remedy was to request reclassification, which the Secretary could not arbitrarily deny. The Court of Appeals affirmed. Held : 1. There is a real case or controversy with respect to the issue presented in the United States' petition for certiorari as to whether, under the Act, the State was entitled to 2.4 million acres of desert land which the Secretary then must reserve from appropriation to other public or private uses, and not just as to the State's entitlement to the lands that had been withdrawn for stock-driveway purposes and that were involved in its Interior Department appeal. Throughout the administrative and judicial proceedings, the parties have taken contrary positions as to whether the State is absolutely entitled to select and have withdrawn under the Act up to 2.4 million acres of desert land regardless of whether the lands it designates have already been withdrawn for other purposes, provided only that statutory preconditions are satisfied. Pp. 722-725. 2. It is apparent from the language and legislative history of the Act that Congress did not intend to reserve any specific number of acres of desert land for any State under the Act, and the Act does not prevent the Secretary from committing otherwise available parts of the public domain for any of the uses authorized under the various statutes relating to the use and management of the public lands. The Act does not oblige the Secretary automatically to contract for lands chosen by the State even if its application otherwise conforms to the statute. Hence, even though a State's selection has not been withdrawn for other uses, the Secretary need not always approve the application. Pp. 725-731. 9 Cir., 595 F.2d 524, affirmed in part and reversed in part. Stuart A. Smith, Washington, D. C., for petitioner. David H. Leroy, Boise, Idaho, for respondents. Mr. Justice WHITE delivered the opinion of the Court. 1 The Carey Act of 1894, ch. 301, § 4, 28 Stat. 422, 43 U.S.C. § 641, "to aid public-land States" in the reclamation of desert lands, authorizes the Secretary of the Interior upon proper application "to contract and agree, from time to time . . . binding the United States to donate, grant, and patent" such desert lands, not exceeding a specified acreage, as the State should cause to be irrigated, reclaimed, and occupied, provided, however, that the lands would be restored to the public domain if reclamation had not begun and plans were not carried out within stated time limits. Originally, each State covered by the Act was limited to one million acres; but in 1908, the ceiling for Idaho was raised to three million acres. Also, in 1910, upon request of a State, the Secretary was authorized to withdraw desert lands temporarily from the public domain prior to the State's submission of a formal plan under the Carey Act. 36 Stat. 237, 43 U.S.C. § 643 (1970 ed.).1 2 Of all Carey Act patents issued, a large majority were issued early in the century, the scarcity of water for irrigation being primarily responsible for the absence of patents in the past 30 years. Improved technology for pumping from deep water sources, however, among other things, has revived interest in reclaiming arid lands. 3 In 1974, the State of Idaho, acting pursuant to 43 U.S.C. § 643, requested that an identified tract of some 27,400 acres be temporarily withdrawn from the public domain pending the submission of a proposed development plan as required by the Carey Act. In January 1975, the Idaho State Office, Bureau of Land Management, rejected the application in part because some of the lands requested had already been withdrawn for other purposes, including a portion being used as a stock driveway. Idaho appealed to the Interior Board of Land Appeals with respect to the lands previously withdrawn for stock-driveway purposes.2 Idaho also filed with the Board a petition under § 7 of the Taylor Grazing Act, 48 Stat. 1272, as amended, 49 Stat. 1976, 43 U.S.C. § 315f, for reclassification of the stock-driveway lands as suitable for use under the Carey Act. 4 The Board, in its decision issued on July 31, 1975, found that the applicable regulations prevented it from withholding action on the Carey Act application pending a decision on the Taylor Act reclassification petition.3 The Board then rejected Idaho's assertion that its Carey Act application took precedence over any withdrawal subsequent to the date of the Act because the Act was a grant in praesenti or because the grant, when the specified conditions were fulfilled, related back to the date of the Act. The Board adhered to its prior decision in State of Wyoming, 36 L.D. 399 (1908), which held that under the Carey Act "the acceptance of the offer of the State is a matter wholly within the discretion of the Department." That being so, the State had no rights whatsoever to have any application approved. The Board further repeated Wyoming's statement that if lands had been withdrawn for other purposes, the presumption that the withdrawal was proper is "conclusive," the lands were not available for a claim under the Carey Act, and the State was not entitled to a hearing "for the purpose of determining whether or not [the Secretary's] discretion has been properly exercised." Id., at 400. The Board, therefore, affirmed the rejection of Idaho's Carey Act application. The case was returned to the Bureau of Land Management for initial action on the petition for reclassification of the stock-driveway lands and for further action on the remaining lands covered by the application for temporary withdrawal. 5 Meanwhile, in February 1975, the State of Idaho, through its appropriate officials, filed a complaint in the United States District Court for the District of Idaho against the Secretary of the Interior. The State alleged that by virtue of the Carey Act, the United States "has bound itself to donate, grant and patent to the State of Idaho . . . three million acres of desert lands," that "these lands are subject to temporary withdrawal and/or segregation upon [the State's] request," that the Secretary is "without any discretion to deny desert lands once requested," and that the Secretary now asserts that "he will not allow the requests for segregation or withdrawal under the Carey Act as a matter of right." The State prayed for a declaration of its rights under the Carey Act.4 The Secretary's answer admitted that he would not allow requests for segregation or withdrawal as a matter of right but denied the remainder of the foregoing allegations. 6 On cross-motions for summary judgment, Idaho submitted that the Carey Act had been an immediately effective grant, or at least that the United States was firmly obligated to contract with and patent the statutory acreage to Idaho when and if Idaho satisfied the statutory preconditions. In the State's view, Carey Act applications took precedence over prior withdrawals. The Secretary, therefore, had been wrong to deny Idaho's request for temporary withdrawal, even though the specified lands had already been withdrawn for other purposes. The United States, to the contrary, asserted that the Carey Act granted nothing to Idaho, had not obligated the Secretary to contract with Idaho with respect to any desert lands selected by the State, but had merely authorized the Secretary to contract if he, in his unbridled discretion, saw fit to do so. The Secretary, therefore, had committed no error and had not exceeded his authority under the Carey Act or any other law when he denied the petition for temporary withdrawal. 7 The District Court, in its memorandum opinion and decision of July 15, 1976, rejected the State's claim that the Carey Act was an in praesenti grant giving the State an absolute right to the acreage specified in the Act. The District Court went on to hold, however, (1) that Idaho was "guaranteed a maximum entitlement of three million acres of suitable desert land . . . which it cannot be deprived of by the Secretary of the Interior, if the State meets the conditions of the Carey Act"; (2) that "[t]he Secretary is under an obligation to preserve enough desert land suitable for Carey Act development to fulfill the State's right of entitlement, which the Federal Government must contract to donate to the State in accordance with the Act"; and (3) that "[t]o the extent the land has been withdrawn for other purposes" and the State desires the land for Carey Act development, "its remedy is to petition the Secretary to reclassify the lands suitable for Carey Act entry," in which event "[t]he Secretary may not arbitrarily deny the State's application for reclassification," his ruling thereon being subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 706. 417 F.Supp. 873, 881 (1976). The District Court went on to indicate its affirmance of the Interior Board of Land Appeals' decision and to this extent granted the Secretary's motion for summary judgment. 8 The Secretary moved for reconsideration and modification of the decision. The District Court again heard oral argument. After first suggesting that the District Court had erred in construing the Carey Act instead of merely sustaining the administrative action, the Secretary then agreed that the case had proceeded as a declaratory judgment action, or at least that it had a declaratory judgment dimension. The Secretary again presented his position that the Carey Act placed no obligation whatsoever on him to enter into any contract with Idaho or to approve any Carey Act application filed by the State. 9 In this respect, the judge expressed his disagreement and on August 26, 1976, entered his judgment, which, as amended in minor respects on November 15, (1) rejected the State's prayer for declaration of its absolute right to demand three million acres of the public domain without regard to any previous classifications and withdrawals and affirmed the decision of the Interior Board of Land Appeals; (2) declared that Idaho is "entitled to have withdrawn and patented three million acres of the desert lands in the public domain," provided that there are sufficient desert lands within the State of Idaho and provided that Idaho satisfies all the terms and conditions of the Act, and declared that by the Carey Act the United States had "bound itself to contract, donate, grant and patent to the State of Idaho, upon compliance with the stated conditions, . . . not to exceed three million acres [of desert land], as that sum may be reduced by prior patents issued pursuant to the Carey Act"; and (3) declared that with respect to desert lands presently withdrawn from the public domain for other purposes, the State's remedy, should it desire to initiate Carey Act development on such lands, "is to petition the [Secretary] for temporary withdrawal under 43 U.S.C. Sec. 643 and/or under 43 U.S.C. Sec. 315f, and it is the duty of the [Secretary] to entertain and act upon said petition or petitions in accordance with the public land laws of the United States of America and in accordance with due and proper administrative procedures." 10 The Ninth Circuit affirmed the judgment "[u]pon the basis of the carefully written opinion" of the District Judge. 595 F.2d 524 (1979). We granted the petition for writ of certiorari filed by the United States and presenting the single question whether the Carey Act "requires the Secretary of the Interior indefinitely to reserve from appropriation to other public or private uses some 2.4 million acres of desert land within Idaho for the eventuality that the State may be able and willing to select all or any part of such acreage for irrigation and reclamation under the Act." 444 U.S. 914, 100 S.Ct. 227, 62 L.Ed.2d 168 (1979). 11 * There is first the question raised at the oral argument of this cause whether there is a case or controversy between the State and the Secretary as to anything other than the State's entitlement to the lands that had been withdrawn for stock-driveway purposes and that were involved in its Interior Department appeal; or, to put the matter another way, whether there is a real case or controversy with respect to the issue that the United States presented in its petition for certiorari, namely, whether the State was entitled to 2.4 million acres of desert land which the Secretary then must preserve for Carey Act development. Although the United States urged on appeal in the Court of Appeals that there was no case or controversy whatsoever, even as to any of the lands covered by Idaho's Carey Act application for temporary withdrawal,5 the Court of Appeals apparently rejected the argument; the United States raised no jurisdictional question in its petition or its brief; and the Solicitor General at oral argument was of the opinion that the District Court and the Court of Appeals had jurisdiction to enter the judgments that appear in this record. We have the same view. 12 From the very outset, the State took the position that it is absolutely entitled to select and have withdrawn under the Carey Act up to 2.4 million acres of desert land, provided only that it satisfy the statutory preconditions. Whether or not the lands that it designated had already been withdrawn for other purposes, such as a stock driveway, it was the State's view that the Secretary had no discretion to deny withdrawal of desert lands that the State selected. The Secretary, on the other hand, from the outset, denied that the State had any right to contract for desert lands under the Carey Act and asserted that it was within his discretion to deny any and all state requests for withdrawal or segregation of lands under the Carey Act, whether or not the selected lands were already in use for other purposes. These were the respective positions of the parties in the Interior Department proceedings, with the Interior Board of Land Appeals rejecting the State's and adopting the Secretary's position. 13 These were also the positions of the parties in the District Court. The State and the Secretary were thus at odds over the proper construction of the Carey Act, over the State's entitlement under the statute, and over the extent of the Secretary's discretion. If the State was correct as to the meaning of the Act, the denial of its request for withdrawal of the stock-driveway lands was incorrect; but the denial was correct if the Secretary had the better view of the statute. We thus find it undeniable that there was a case or controversy between the Secretary and the State with respect to the approval of its Carey Act application and that the case or controversy in this respect turned on what rights, if any, the State had under this 1894 statute. Although at the time that the case was filed in the District Court, the State's administrative appeal had not yet been decided, a case or controversy in the Art. III sense existed; and, in any event, administrative appellate procedures were soon exhausted. The District Court accepted the case as involving a review of the Secretary's action and as requiring a declaration of the respective rights of the State and the Secretary under the Act. 14 In proceeding to address the statutory issues tendered by the State, the District Court rejected both the position of the State and that of the Secretary. The State was entitled to up to 2.4 million acres of desert land for which the Secretary was obligated to contract with the State pursuant to the terms of the Act; but the Act was not a grant in praesenti, and the State did not have an absolute right to the particular desert lands that it happened to select. If the lands had been withdrawn for another public use pursuant to another statute, the State's remedy was to request reclassification, which the Secretary could not arbitrarily deny. Under this approach, the Secretary was correct in denying the State's request for immediate withdrawal of the lands already in use as a stock driveway; but the Secretary was quite wrong in claiming absolute discretion to deny any Carey Act application, including the State's pending application insofar as it covered lands that had not yet been withdrawn for other purposes. 15 These elements were included in the District Court's judgment and were supported by its opinion. We find no jurisdictional barrier to the entry of such a judgment or to appellate review of that part of the judgment to which the United States objects as a misconstruction of the Carey Act and as an unwarranted extension of rights to the State that would constitute a substantial interference with the authority of the Secretary to manage the public lands. II 16 As was set out above, the judgment declared that Idaho is "entitled" to 2.4 million acres of Carey Act land and that the Secretary is "bound" to contract for such lands. Although the judgment did not prevent the Secretary from putting desert lands to other uses, the judgment, fairly read, would obligate the Secretary to contract with the States for lands selected by it that had not been so withdrawn, if the State complied with the statutory conditions.6 The Secretary submits that the Act does not so drastically limit his discretion. He also understands these same provisions of the judgment to mean that he "must hold for eventual disposition under the Carey Act approximately 2.4 million acres of unappropriated desert lands." Brief for Petitioner 8. At least that much desert land, he says, must be reserved and may not be put to other uses. Although the judgment does not so provide in so many words, it is fairly arguable that this is what the trial court intended, particularly because in its opinion, which the Court of Appeals made its own, the trial court held that the State is "guaranteed" the statutory acreage, "which it cannot be deprived of by the Secretary," and that the Secretary is under an "obligation to preserve enough desert land suitable for Carey Act development" to fulfill the State's entitlement. The precise meaning of the judgment in this respect, however, we do not further pursue; for as we understand the language and legislative history of the Carey Act, it neither requires the Secretary to hold the statutory acreage in reserve nor obliges him always to contract with the State for desert lands that the State selects from those parts of the public domain that have not been withdrawn for other purposes. 17 The language of the Act7 "authorize[s] and empower[s]," but does not direct, the Secretary to contract with the State upon the State's proper application. This is permissive language, as compared with the obligatory statutory language requiring the Secretary to issue a patent once he has contracted with the State and the State has satisfied the contractual and statutory conditions. Furthermore, the Secretary may act only with the approval of the President, a provision which strongly suggests that the statutory discretion to contract is broader than merely determining whether the application on its face satisfies the statutory requirements.8 18 In ascertaining the meaning of the relevant language of the Act, it is important to note the circumstances of its adoption in 1894. The initial version of the Act was adopted in the Senate as an amendment to an appropriations bill that had already passed the House. The amendment, which was offered by Senator Carey of Wyoming, was in the form of a Senate bill that had previously been offered by the Senator and passed by the Senate but was still pending before a House committee. This bill, and the amendment to the appropriations bill, provided that each State could select up to the specified acreage of desert lands and that upon selection the lands would be immediately reserved from other entry and would be patented to the State upon proof that the selected land had been suitably reclaimed. The House conferees brought the amended appropriations bill before the House where a substitute for the Senate amendment was offered by Representative McRae and was adopted after full debate. The Conference Committee then adopted the House substitute, and it was this version that became known as the Carey Act. 19 For present purposes, the principal difference between the Senate amendment and the McRae substitute was that the former provided for automatic reservation upon selection by the State and the latter did not. As Representative McRae explained, 26 Cong.Rec. 8391 (1894): "The Senate proposition makes a reservation outright for the States and will make it possible for the States to put a million of acres in each State in reservation for an indefinite period. . . . The pending proposition does not make any grant, but only authorizes the Secretary of the Interior with the approval of the President to make a contract with any States in which any of these lands may be situated. . . ." And again, id., at 8431: "This is no grant at all, but only gives authority to the Secretary of the Interior and President to make contracts binding the United States to donate the land to the States when reclaimed." There are some indications during the debates, originating from both proponents and opponents of the provision, that perhaps a more substantive action was intended; but there is nothing that undercuts the explanation of Representative McRae as to the meaning of the markedly different language contained in the House substitute. Nor is there anything persuasive in the several later additions or amendments to the Carey Act to indicate that the Act reserved to the States or obligated the Secretary to contract for any particular acreage for Carey Act development.9 20 It has also been the consistent view of the Department of the Interior that the Carey Act does not grant or reserve any specified acreage of desert lands for development under the Carey Act. State of Wyoming, 36 L.D. 399 (1908), relied on by the Secretary in this case, stands for at least this much; and we have in other cases accorded a considerable deference to the responsible agency's construction of the statute which it administers. Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 613-614, 98 S.Ct. 2002, 2007-2008, 56 L.Ed.2d 570 (1978); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Cameron v. United States, 252 U.S. 450, 460, 40 S.Ct. 410, 412, 64 L.Ed. 659 (1920). It is also ascertainable from the Congressional Record, reflecting the proceedings connected with the 1908 amendments to the Carey Act, that the eight States covered by the Act had by that time selected approximately 2.72 million acres under the Carey Act but that less than half that amount, 1.12 million acres, had been approved and only 200,000 acres had gone to patent. One of the many reasons for rejections of selected lands had been that they were already in other legitimate use or that such use was being considered. 42 Cong.Rec. 6437 (1908).10 21 Against this background, we conclude that Congress did not intend to reserve any specific number of acres of desert land for any State under the Carey Act and that the Act does not prevent the Secretary from committing otherwise available parts of the public domain for any of the uses authorized under the various statutes relating to the use and management of the public lands, such as the Taylor Grazing Act under which part of the lands that Idaho sought in this case have been withdrawn. It is also clear that one of the reasons prompting the McRae substitute was to eliminate the right of the State under the Senate version to have automatically reserved and to contract for the particular lands that it selected. As finally adopted, the Act does not oblige the Secretary automatically to contract for lands chosen by the State even if its application otherwise conforms to the statute. Hence, even though a State's selection has not been withdrawn for other uses, as is the case with part of the land that Idaho applied for in this case,11 the Secretary need not always approve the application.12 22 The District Court was therefore correct in remitting the State to a reclassification proceeding with respect to the land in use as a stock driveway; but the District Court erred in declaring that the Act entitled the State to the statutory acreage in the sense that the Secretary was firmly bound to reserve such acreage and to contract for it as and when the State selected it. 23 For the foregoing reasons, the judgment of the Court of Appeals is affirmed in part and reversed in part. 24 So ordered. 25 Mr. Justice STEVENS, dissenting. 26 Everyone agrees that the District Court correctly rejected Idaho's now-abandoned claim that the Carey Act, as amended, constituted an absolute, present grant of entitlement to any three million acres of arid lands that the State might designate at some time in the future. But the District Court's rejection of that claim did not require it to express any opinion on any of the questions that the Court discusses today. 27 This record does not present the question of what reasons, if any, are necessary or sufficient to justify a denial by the Secretary of a Carey Act application or a petition for reclassification under the Taylor Grazing Act.1 I would therefore express no opinion on that question. 28 Nor is there anything in this record to suggest that there is any imminent likelihood that the Secretary will reserve for other purposes so much of the federal land in Idaho otherwise suitable for Carey Act contracts that less than 2.4 million acres will be available.2 Unless and until such a likelihood appears, there is no need to decide whether he may do so. The fact that in the 85-year life of the Carey Act Idaho has used only about one-fifth of the 3 million acres authorized makes it rather clear that resolution of that issue is of no immediate consequence to either party. 29 In short, I do not believe either of the questions on which the Court has volunteered its advice is ripe for decision. I would simply vacate the purely advisory portions of the District Court's judgment and refrain from deciding any questions not fairly raised by this record. 1 This legislation was prompted by a desire to prevent speculative filings under entry statutes on land chosen by a State for a Carey Act project. S.Rep.No. 367, 61st Cong., 2d Sess. (1910); H.R.Rep.No. 662, 61st Cong., 2d Sess. (1910). After the decision and judgment of the District Court in this case, this provision was repealed by § 704(a) of the Federal Land Policy and Management Act of 1976 (FLPMA), Pub.L. 94-579, 90 Stat. 2792. Under § 204 of FLPMA, 43 U.S.C. § 1714, however, which gives the Secretary the general authority to make withdrawals, the Secretary construes his authority to allow him to withdraw public lands from entry pending submission of a formal plan under the Carey Act. 2 On the State's failure to appeal the denial with respect to the lands covered by the application that had been withdrawn for purposes other than a stock driveway, the order as to these lands became final. 3 The Board cited its stock-driveway regulations providing that "[l]ands withdrawn for driveways for stock . . . are not subject to entry or disposition" and that applications for the acquisition of such lands shall be rejected. 43 CFR § 2313.1(c) (1974). The Board also relied on a general regulation, 43 CFR § 2091.1(a) (1974), providing in pertinent part that "applications which are accepted for filing must be rejected and cannot be held pending possible future availability of the land or interests in land, when approval of the application is prevented by . . . [w]ithdrawal or reservation of lands." The Board's prior cases are also to this effect. 4 The State alleged jurisdiction in the District Court "by virtue of a federal question existing and amounts of money involved . . . in excess of $10,000, exclusive of costs and interest." The State also alleged jurisdiction "pursuant to the Federal A. P. A. (5 U.S.C. § 701 et seq.)." The complaint did not recite that the State sought relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, but the District Court understood the complaint as seeking declaratory relief. 5 In the Court of Appeals, the Secretary conceded that a case or controversy had existed with respect to the stock-driveway lands for which temporary withdrawal had been requested under § 643 but asserted that the controversy had become moot with the repeal of § 643. The Secretary now concedes, however, that under the Federal Land Policy and Management Act of 1976, even though it repealed § 643, he has the same power of temporary withdrawal as he had under § 643. See n. 1, supra. 6 The State has not cross petitioned from the holding that the Carey Act is not a grant in praesenti and that a Carey Act application does not automatically take precedence over prior withdrawals. The State as a respondent is not entitled, absent a cross-petition, to bring that issue before us; for a favorable ruling would enlarge the relief granted the State under the Court of Appeals judgment. The State does of course strongly urge, as it may, that it is entitled to at least what the District Court recognized to be its rights under the Carey Act. 7 The Carey Act, 43 U.S.C. § 641, provides in pertinent part: "To aid the public-land States in the reclamation of the desert lands therein, and the settlement, cultivation and sale thereof in small tracts to actual settlers, the Secretary of the Interior with the approval of the President . . . is authorized and empowered, upon proper application of the State to contract and agree, from time to time, with each of the States in which there may be situated desert lands . . . binding the United States to donate, grant, and patent to the State free of cost for survey or price such desert lands, not exceeding one million acres in each State, as the State may cause to be irrigated, reclaimed, occupied, and . . . cultivated by actual settlers . . . within ten years from the date of approval by the Secretary of the Interior of the State's application for the segregation of such lands . . . ." Section 641 further provides that if the requirements as to reclamation are not satisfied within certain time periods, the Secretary may restore the lands to the public domain or may authorize limited extension of the deadlines. 8 The District Court purported to find some support for its conclusion in Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 521, 44 S.Ct. 618, 619, 68 L.Ed. 1157 (1924), where the Court recited that the Carey Act "binds" the United States to donate desert lands to the States. The passage referred to, however, does not say that the United States is bound to contract in the first instance. In any event, that case involved a dispute between an irrigation company and the owners of water rights pursuant to contracts with the company; and it was only in describing the background of the case that the Court referred to the Carey Act. There was no question in that case as to the scope of the State's entitlement under the Act or the scope of the Secretary's discretion. Attaching great significance to this recitation is unwarranted. Nor do we find the other state and federal cases that the District Court cited to be persuasive support for its conclusions as to the Secretary's obligations. 9 In 1896, Congress provided that patents could be issued when water had been supplied to the land without regard to settlement or cultivation. The same Act provided for liens against the lands prior to patent for the costs of reclamation. Act of June 11, 1896, § 1, 29 Stat. 434, 43 U.S.C. § 642. Although § 642 refers to the "grant" made under § 641, the context indicates that the word is loosely used to refer to the state laws enacted in acceptance of the terms of the Carey Act. Idaho, in fact, stresses that it, like 9 of the 11 other desert land States, specifically referred to the Carey Act's "grants of land" when the State enacted legislative acceptances of the offer to obtain federal lands by reclamation. Brief for Respondents 12-13, and n. 6. Subsequent legislation did not touch on the issue at all. In 1908, an additional two million acres of desert lands were authorized for Carey Act selection in the State of Idaho, 43 U.S.C. § 645 and Joint Res. 28, 60th Cong., 1st Sess. (1908), see 35 Stat. 577; and an additional one million acres in the State of Wyoming. 43 U.S.C. § 645. In 1909, the provisions of the Carey Act were extended to the States of Arizona and New Mexico, § 646, and to the former Ute Indian Reservation in Colorado. § 647. In 1910, as indicated in the text, § 643 with respect to temporary withdrawals was adopted. In 1911, the Act was extended to the Fort Bridger Military Reservation in Wyoming, Act of Feb. 16, 1911, ch. 90, 36 Stat. 913; and an additional one million acres were authorized for the States of Nevada and Colorado. 43 U.S.C. § 645. The Act was amended in 1920 with respect to rights of entry by settlers on lands covered by unsuccessful Carey Act projects. § 644. In 1921, the Secretary of the Interior was authorized to extend the period of segregation or to restore the lands to the public domain when States failed to construct the anticipated reclamation works. § 641. Congress at no time indicated disagreement with the way that the Secretary was administering the Carey Act, at least as relevant to the issues in this case. 10 During the discussion, Representative Gaines of Tennessee asked Representative French of Idaho to explain why the Secretary had not granted all Carey Act applications. Representative French replied: "The reason is this: We have a national reclamation law under which lands are being reclaimed; we have the Indian reservation law; we have lands that have passed into private ownership under the desert-land act and other laws. Sometimes it happens that an application for segregation under the Carey Act overlaps one or more of these propositions or tracts of land." 11 Prior to the District Court's judgment, the Board also ruled on two other Carey Act applications by Idaho covering unwithdrawn and otherwise available land. Idaho Department of Water Resources, 25 I.B.L.A. 27 (1976); Idaho Department of Water Resources, 24 I.B.L.A. 314 (1976). 12 The Secretary has not questioned the judgment and opinion of the District Court indicating that the Secretary's refusal to reclassify withdrawn lands for Carey Act purposes would be subject to judicial review and would be set aside if arbitrary or capricious. Neither has the Secretary asserted that his rejection of a State's application for withdrawal or segregation of appropriate desert lands in the public domain would not be subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 706. To the extent that the claim of absolute discretion to approve or disapprove Carey Act applications is inconsistent with the absence of a direct challenge to this aspect of the District Court's decision or with the general standards for judicial review of agency action under the Administrative Procedure Act, we reject, as did the District Court, the claim of absolute discretion. 1 Idaho's complaint prayed simply for a declaration that "the State of Idaho has an absolute right to demand up to three million acres of desert lands under the Carey Act and further . . . that the [Secretary of the Interior] . . . has no authority or discretion to deny any request for segregation or withdrawal when presented by the Plaintiff." App. 6. 2 It was suggested by the State at oral argument that perhaps as much as 8.5 million acres is "susceptible of possible irrigation that is still in Federal lands." Tr. of Oral Arg. 33. To date, Idaho has received approximately 600,000 acres under the Carey Act.

78

445 U.S. 622 100 S.Ct. 1398 63 L.Ed.2d 673 George D. OWEN, Petitioner,v.CITY OF INDEPENDENCE, MISSOURI et al. No. 78-1779. Argued Jan. 8, 1980. Decided April 16, 1980. Rehearing Denied June 2, 1980. See 446 U.S. 993, 100 S.Ct. 2979. Syllabus After the City Council of respondent city moved that reports of an investigation of the city police department be released to the news media and turned over to the prosecutor for presentation to the grand jury and that the City Manager take appropriate action against the persons involved in the wrongful activities brought out in the investigative reports, the City Manager discharged petitioner from his position as Chief of Police. No reason was given for the dismissal and petitioner received only a written notice stating that the dismissal was made pursuant to a specified provision of the city charter. Subsequently, petitioner brought suit in Federal District Court under 42 U.S.C. § 1983 against the city, the respondent City Manager, and the respondent members of the City Council in their official capacities, alleging that he was discharged without notice of reasons and without a hearing in violation of his constitutional rights to procedural and substantive due process, and seeking declaratory and injunctive relief. The District Court, after a bench trial, entered judgment for respondents. The Court of Appeals ultimately affirmed, holding that although the city had violated petitioner's rights under the Fourteenth Amendment, nevertheless all the respondents, including the city, were entitled to qualified immunity from liability based on the good faith of the city officials involved. Held: A municipality has no immunity from liability under § 1983 flowing from its constitutional violations and may not assert the good faith of its officers as a defense to such liability. Pp. 635-658. (a) By its terms, § 1983 "creates a species of tort liability that on its face admits of no immunities." Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 998, 47 L.Ed.2d 128. Its language is absolute and unqualified, and no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the statute imposes liability upon "every person" (held in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, to encompass municipal corporations) who, under color of state law or custom, "subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." And this expansive sweep of § 1983's language is confirmed by its legislative history. Pp. 635-636. (b) Where an immunity was well established at common law and where its rationale was compatible with the purposes of § 1983, the statute has been construed to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity accorded respondent city by the Court of Appeals. Pp. 637-644. (c) The application and rationale underlying both the doctrine whereby a municipality was held immune from tort liability with respect to its "governmental" functions but not for its "proprietary" functions, and the doctrine whereby a municipality was immunized for its "discretionary" or "legislative" activities but not for those which were "ministerial" in nature, demonstrate that neither of these common-law doctrines could have been intended to limit a municipality's liability under § 1983. The principle of sovereign immunity from which a municipality's immunity for "governmental" functions derives cannot serve as the basis for the qualified privilege respondent city claims under § 1983, since sovereign immunity insulates a municipality from unconsented suits altogether, the presence or absence of good faith being irrelevant, and since the municipality's "governmental" immunity is abrogated by the sovereign's enactment of a statute such as § 1983 making it amenable to suit. And the doctrine granting a municipality immunity for "discretionary" functions, which doctrine merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality, cannot serve as the foundation for a good-faith immunity under § 1983, since a municipality has no "discretion" to violate the Federal Constitution. Pp. 644-650. (d) Rejection of a construction of § 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violations is compelled both by the purpose of § 1983 to provide protection to those persons wronged by the abuse of governmental authority and to deter future constitutional violations, and by considerations of public policy. In view of the qualified immunity enjoyed by most government officials, many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good-faith defense. The concerns that justified decisions conferring qualified immunities on various government officials—the injustice, particularly in the absence of bad faith, of subjecting the official to liability, and the danger that the threat of such liability would deter the official's willingness to execute his office effectively—are less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue. Pp. 650-656. 589 F.2d 335, reversed. Irving Achtenberg, Kansas City, Mo., for petitioner. Richard G. Carlisle, Independence, Mo., for respondents. Mr. Justice BRENNAN delivered the opinion of the Court. 1 Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), insofar as Monroe held that local governments were not among the "persons" to whom 42 U.S.C. § 1983 applies and were therefore wholly immune from suit under the statute.1 Monell reserved decision, however, on the question whether local governments, although not entitled to an absolute immunity, should be afforded some form of official immunity in § 1983 suits. 436 U.S., at 701, 98 S.Ct., at 2041. In this action brought by petitioner in the District Court for the Western District of Missouri, the Court of Appeals for the Eighth Circuit held that respondent city of Independence, Mo., "is entitled to qualified immunity from liability" based on the good faith of its officials: "We extend the limited immunity the district court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice." 589 F.2d 335, 337-338 (1978). We granted certiorari. 444 U.S. 822, 100 S.Ct. 42, 62 L.Ed.2d 28 (1979). We reverse. 2 * The events giving rise to this suit are detailed in the District Court's findings of fact, 421 F.Supp. 1110 (1976). On February 20, 1967, Robert L. Broucek, then City Manager of respondent city of Independence, Mo., appointed petitioner George D. Owen to an indefinite term as Chief of Police.2 In 1972, Owen and a new City Manager, Lyle W. Alberg, engaged in a dispute over petitioner's administration of the Police Department's property room. In March of that year, a handgun, which the records of the Department's property room stated had been destroyed, turned up in Kansas City in the possession of a felon. This discovery prompted Alberg to initiate an investigation of the management of the property room. Although the probe was initially directed by petitioner, Alberg soon transferred responsibility for the investigation to the city's Department of Law, instructing the City Counselor to supervise its conduct and to inform him directly of its findings. 3 Sometime in early April 1972, Alberg received a written report on the investigation's progress, along with copies of confidential witness statements. Although the City Auditor found that the Police Department's records were insufficient to permit an adequate accounting of the goods contained in the property room, the City Counselor concluded that there was no evidence of any criminal acts or of any violation of state or municipal law in the administration of the property room. Alberg discussed the results of the investigation at an informal meeting with several City Council members and advised them that he would take action at an appropriate time to correct any problems in the administration of the Police Department. 4 On April 10, Alberg asked petitioner to resign as Chief of Police and to accept another position within the Department, citing dissatisfaction with the manner in which petitioner had managed the Department, particularly his inadequate supervision of the property room. Alberg warned that if petitioner refused to take another position in the Department his employment would be terminated, to which petitioner responded that he did not intend to resign. 5 On April 13, Alberg issued a public statement addressed to the Mayor and the City Council concerning the results of the investigation. After referring to "discrepancies" found in the administration, handling, and security of public property, the release concluded that "[t]here appears to be no evidence to substantiate any allegations of a criminal nature" and offered assurances that "[s]teps have been initiated on an administrative level to correct these discrepancies." Id., at 1115. Although Alberg apparently had decided by this time to replace petitioner as Police Chief, he took no formal action to that end and left for a brief vacation without informing the City Council of his decision.3 6 While Alberg was away on the weekend of April 15 and 16, two developments occurred. Petitioner, having consulted with counsel, sent Alberg a letter demanding written notice of the charges against him and a public hearing with a reasonable opportunity to respond to those charges.4 At approximately the same time, City Councilman Paul L. Roberts asked for a copy of the investigative report on the Police Department property room. Although petitioner's appeal received no immediate response, the Acting City Manager complied with Roberts' request and supplied him with the audit report and witness statements. 7 On the evening of April 17, 1972, the City Council held its regularly scheduled meeting. After completion of the planned agenda, Councilman Roberts read a statement he had prepared on the investigation.5 Among other allegations, Roberts charged that petitioner had misappropriated Police Department property for his own use, that narcotics and money had "mysteriously disappeared" from his office, that traffic tickets had been manipulated, that high ranking police officials had made "inappropriate" requests affecting the police court, and that "things have occurred causing the unusual release of felons." At the close of his statement, Roberts moved that the investigative reports be released to the news media and turned over to the prosecutor for presentation to the grand jury, and that the City Manager "take all direct and appropriate action" against those persons "involved in illegal, wrongful, or gross inefficient activities brought out in the investigative reports." After some discussion, the City Council passed Roberts' motion with no dissents and one abstention.6 8 City Manager Alberg discharged petitioner the very next day. Petitioner was not given any reason for his dismissal; he received only a written notice stating that his employment as Chief of Police was "[t]erminated under the provisions of Section 3.3(1) of the City Charter."7 Petitioner's earlier demand for a specification of charges and a public hearing was ignored, and a subsequent request by his attorney for an appeal of the discharge decision was denied by the city on the grounds that "there is no appellate procedure or forum provided by the Charter or ordinances of the City of Independence, Missouri, relating to the dismissal of Mr. Owen." App. 26-27. 9 The local press gave prominent coverage both to the City Council's action and petitioner's dismissal, linking the discharge to the investigation.8 As instructed by the City Council, Alberg referred the investigative reports and witness statements to the Prosecuting Attorney of Jackson County, Mo., for consideration by a grand jury. The results of the audit and investigation were never released to the public, however. The grand jury subsequently returned a "no true bill," and no further action was taken by either the City Council or City Manager Alberg. II 10 Petitioner named the city of Independence, City Manager Alberg, and the present members of the City Council in their official capacities as defendants in this suit.9 Alleging that he was discharged without notice of reasons and without a hearing in violation of his constitutional rights to procedural and substantive due process, petitioner sought declaratory and injunctive relief, including a hearing on his discharge, backpay from the date of discharge, and attorney's fees. The District Court, after a bench trial, entered judgment for respondents. 421 F.Supp. 1110 (1976).10 11 The Court of Appeals initially reversed the District Court. 560 F.2d 925 (1977).11 Although it agreed with the District Court that under Missouri law petitioner possessed no property interest in continued employment as Police Chief, the Court of Appeals concluded that the city's allegedly false public accusations had blackened petitioner's name and reputation, thus depriving him of liberty without due process of law. That the stigmatizing charges did not come from the City Manager and were not included in the official discharge notice was, in the court's view, immaterial. What was important, the court explained, was that "the official actions of the city council released charges against [petitioner] contemporaneous and, in the eyes of the public, connected with that discharge." Id., at 937.12 12 Respondents petitioned for review of the Court of Appeals' decision. Certiorari was granted, and the case was remanded for further consideration in light of our supervening decision in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). 438 U.S. 902, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978). The Court of Appeals on the remand reaffirmed its original determination that the city had violated petitioner's rights under the Fourteenth Amendment, but held that all respondents, including the city, were entitled to qualified immunity from liability. 589 F.2d 335 (1978). 13 Monell held that "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." 436 U.S., at 694, 98 S.Ct., at 2038. The Court of Appeals held in the instant case that the municipality's official policy was responsible for the deprivation of petitioner's constitutional rights: "[T]he stigma attached to [petitioner] in connection with his discharge was caused by the official conduct of the City's lawmakers, or by those whose acts may fairly be said to represent official policy. Such conduct amounted to official policy causing the infringement of [petitioner's] constitutional rights, in violation of section 1983." 589 F.2d, at 337.13 14 Nevertheless, the Court of Appeals affirmed the judgment of the District Court denying petitioner any relief against the respondent city, stating: 15 "The Supreme Court's decisions in Board of Regents v. Roth, 408 U.S. 564 [92 S.Ct. 2701, 33 L.Ed.2d 548] (1972), and Perry v. Sindermann, 408 U.S. 593 [92 S.Ct. 2694, 33 L.Ed.2d 570] (1972), crystallized the rule establishing the right to a name-clearing hearing for a government employee allegedly stigmatized in the course of his discharge. The Court decided those two cases two months after the discharge in the instant case. Thus, officials of the City of Independence could not have been aware of [petitioner's] right to a name-clearing hearing in connection with the discharge. The City of Independence should not be charged with predicting the future course of constitutional law. We extend the limited immunity the district court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice. We hold the City not liable for actions it could not reasonably have known violated [petitioner's] constitutional rights." Id., at 338 (footnote and citations omitted).14 16 We turn now to the reasons for our disagreement with this holding.15 III 17 Because the question of the scope of a municipality's immunity from liability under § 1983 is essentially one of statutory construction, see Wood v. Strickland, 420 U.S. 308, 314, 316, 95 S.Ct. 992, 996, 998, 43 L.Ed.2d 214 (1975); Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951), the starting point in our analysis must be the language of the statute itself. Andrus v. Allard, 444 U.S. 51, 56, 100 S.Ct. 318, 322, 62 L.Ed.2d 210 (1979); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (POWELL, J., concurring). By its terms, § 1983 "creates a species of tort liability that on its face admits of no immunities." Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976). Its language is absolute and unqualified; no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the Act imposes liability upon "every person" who, under color of state law or custom, "subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."16 And Monell held that these words were intended to encompass municipal corporations as well as natural "persons." 18 Moreover, the congressional debates surrounding the passage of § 1 of the Civil Rights Act of 1871, 17 Stat. 13—the forerunner of § 1983—confirm the expansive sweep of the statutory language. Representative Shellabarger, the author and manager of the bill in the House, explained in his introductory remarks the breadth of construction that the act was to receive: 19 "I have a single remark to make in regard to the rule of interpretation of those provisions of the Constitution under which all the sections of the bill are framed. This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people." Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871) (hereinafter Globe App.). 20 Similar views of the Act's broad remedy for violations of federally protected rights were voiced by its supporters in both Houses of Congress. See Monell v. New York City Dept. of Social Services, 436 U.S., at 683-687, 98 S.Ct., at 2032-2034.17 21 However, notwithstanding § 1983's expansive language and the absence of any express incorporation of common-law immunities, we have, on several occasions, found that a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that "Congress would have specifically so provided had it wished to abolish the doctrine." Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). Thus in Tenney v. Brandhove, supra, after tracing the development of an absolute legislative privilege from its source in 16th-century England to its inclusion in the Federal and State Constitutions, we concluded that Congress "would [not] impinge on a tradition so well grounded in history and reason by covert inclusion in the general language" of § 1983. 341 U.S., at 376, 71 S.Ct., at 788. 22 Subsequent cases have required that we consider the personal liability of various other types of government officials. Noting that "[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction," Pierson v. Ray, supra, 386 U.S., at 553-554, 87 S.Ct., at 1217, held that the absolute immunity traditionally accorded judges was preserved under § 1983. In that same case, local police officers were held to enjoy a "good faith and probable cause" defense to § 1983 suits similar to that which existed in false arrest actions at common law. 386 U.S., at 555-557, 87 S.Ct., at 1218-1219. Several more recent decisions have found immunities of varying scope appropriate for different state and local officials sued under § 1983. See Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) (qualified immunity for prison officials and officers); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (absolute immunity for prosecutors in initiating and presenting the State's case); O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (qualified immunity for superintendent of state hospital); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (qualified immunity for local school board members); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (qualified "good-faith" immunity for state Governor and other executive officers for discretionary acts performed in the course of official conduct). 23 In each of these cases, our finding of § 1983 immunity "was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." Imbler v. Pachtman, supra, at 421, 96 S.Ct., at 990. Where the immunity claimed by the defendant was well established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity accorded the city of Independence by the Court of Appeals. We hold, therefore, that the municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983.18 24 Since colonial times, a distinct feature of our Nation's system of governance has been the conferral of political power upon public and municipal corporations for the management of matters of local concern. As Monell recounted, by 1871 municipalities—like private corporations—were treated as natural persons for virtually all purposes of constitutional and statutory analysis. In particular, they were routinely sued in both federal and state courts. See 436 U.S., at 687-688, 98 S.Ct., at 2034. Cf. Cowles v. Mercer County, 7 Wall. 118, 19 L.Ed. 86 (1869). Local governmental units were regularly held to answer in damages for a wide range of statutory and constitutional violations, as well as for common-law actions for breach of contract.19 And although, as we discuss below,20 a municipality was not subject to suit for all manner of tortious conduct, it is clear that at the time § 1983 was enacted, local governmental bodies did not enjoy the sort of "good-faith" qualified immunity extended to them by the Court of Appeals. 25 As a general rule, it was understood that a municipality's tort liability in damages was identical to that of private corporations and individuals: 26 "There is nothing in the character of a municipal corporation which entitles it to an immunity from liability for such malfeasances as private corporations or individuals would be liable for in a civil action. A municipal corporation is liable to the same extent as an individual for any act done by the express authority of the corporation, or of a branch of its government, empowered to act for it upon the subject to which the particular act relates, and for any act which, after it has been done, has been lawfully ratified by the corporation." T. Shearman & A. Redfield, A Treatise on the Law of Negligence § 120, p. 139 (1869) (hereinafter Shearman & Redfield). 27 Accord, 2 Dillon § 764, at 875 ("But as respects municipal corporations proper, . . . it is, we think, universally considered, even in the absence of statute giving the action, that they are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or officers, in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties") (emphasis in original). See 18 E. McQuillin, Municipal Corporations § 53.02 (3d rev. ed. 1977) (hereinafter McQuillin). Under this general theory of liability, a municipality was deemed responsible for any private losses generated through a wide variety of its operations and functions, from personal injuries due to its defective sewers, thoroughfares, and public utilities, to property damage caused by its trespasses and uncompensated takings.21 28 Yet in the hundreds of cases from that era awarding damages against municipal governments for wrongs committed by them, one searches in vain for much mention of a qualified immunity based on the good faith of municipal officers. Indeed, where the issue was discussed at all, the courts had rejected the proposition that a municipality should be privileged where it reasonably believed its actions to be lawful. In the leading case of Thayer v. Boston, 36 Mass. 511, 515-516 (1837), for example, Chief Justice Shaw explained: 29 "There is a large class of cases, in which the rights of both the public and of individuals may be deeply involved, in which it cannot be known at the time the act is done, whether it is lawful or not. The event of a legal inquiry in a court of justice, may show that it was unlawful. Still, if it was not known and understood to be unlawful at the time, if it was an act done by the officers having competent authority, either by express vote of the city government, or by the nature of the duties and functions with which they are charged, by their offices, to act upon the general subject matter, and especially if the act was done with an honest view to obtain for the public some lawful benefit or advantage, reason and justice obviously require that the city, in its corporate capacity, should be liable to make good the damage sustained by an individual in consequence of the acts thus done." 30 The Thayer principle was later reiterated by courts in several jurisdictions, and numerous decisions awarded damages against municipalities for violations expressly found to have been committed in good faith. See, e. g., Town Council of Akron v. McComb, 18 Ohio 229, 230-231 (1849); Horton v. Inhabitants of Ipswich, 66 Mass. 488, 489, 492 (1853); Elliot v. Concord, 27 N.H. 204 (1853); Hurley v. Town of Texas, 20 Wis. 634, 637-638 (1866); Lee v. Village of Sandy Hill, 40 N.Y. 442, 448-451 (1869); Billings v. Worcester, 102 Mass. 329, 332-333 (1869); Squiers v. Village of Neenah, 24 Wis. 588, 593 (1869); Hawks v. Charlemont, 107 Mass. 414, 417-418 (1871).22 31 That municipal corporations were commonly held liable for damages in tort was also recognized by the 42d Congress. See Monell v. New York City Dept. of Social Services, 436 U.S., at 688, 98 S.Ct., at 2034. For example, Senator Stevenson, in opposing the Sherman amendment's creation of a municipal liability for the riotous acts of its inhabitants, stated the prevailing law: "Numberless cases are to be found where a statutory liability has been created against municipal corporations for injuries resulting from a neglect of corporate duty." Cong. lobe 42d Cong., 1st Sess., 762 (hereinafter Globe).23 Nowhere in the debates, however, is there a suggestion that the common law excused a city from liability on account of the good faith of its authorized agents, much less an indication of a congressional intent to incorporate such an immunity into the Civil Rights Act.24 The absence of any allusion to a municipal immunity assumes added significance in light of the objections raised by the opponents of § 1 of the Act that its unqualified language could be interpreted to abolish the traditional good-faith immunities enjoyed by legislators, judges, governors, sheriffs, and other public officers.25 Had there been a similar common-law immunity for municipalities, the bill's opponents doubtless would have raised the specter of its destruction, as well. 32 To be sure, there were two doctrines that afforded municipal corporations some measure of protection from tort liability. The first sought to distinguish between a municipality's "governmental" and "proprietary" functions; as to the former, the city was held immune, whereas in its exercise of the latter, the city was held to the same standards of liability as any private corporation. The second doctrine immunized a municipality for its "discretionary" or "legislative" activities, but not for those which were "ministerial" in nature. A brief examination of the application and the rationale underlying each of these doctrines demonstrates that Congress could not have intended them to limit a municipality's liability under § 1983. 33 The governmental-proprietary distinction26 owed its existence to the dual nature of the municipal corporation. On the one hand, the municipality was a corporate body, capable of performing the same "proprietary" functions as any private corporation, and liable for its torts in the same manner and to the same extent, as well. On the other hand, the municipality was an arm of the State, and when acting in that "governmental" or "public" capacity, it shared the immunity traditionally accorded the sovereign.27 But the principle of sovereign immunity—itself a somewhat arid fountainhead for municipal immunity28—is necessarily nullified when the State expressly or impliedly allows itself, or its creation, to be sued. Municipalities were therefore liable not only for their "proprietary" acts, but also for those "governmental" functions as to which the State had withdrawn their immunity. And, by the end of the 19th century, courts regularly held that in imposing a specific duty on the municipality either in its charter or by statute, the State had impliedly withdrawn the city's immunity from liability for the nonperformance or misperformance of its obligation. See, e. g., Weightman v. The Corporation of Washington, 1 Black 39, 50-52, 17 L.Ed. 52 (1862); Providence v. Clapp, 17 How. 161, 167-169, 15 L.Ed. 72 (1855). See generally Shearman & Redfield §§ 122-126; Note, Liability of Cities for the Negligence and Other Misconduct of their Officers and Agents, 30 Am.St.Rep. 376, 385 (1893). Thus, despite the nominal existence of an immunity for "governmental" functions, municipalities were found liable in damages in a multitude of cases involving such activities. 34 That the municipality's common-law immunity for "governmental" functions derives from the principle of sovereign immunity also explains why that doctrine could not have served as the basis for the qualified privilege respondent city claims under § 1983. First, because sovereign immunity insulates the municipality from unconsented suits altogether, the presence or absence of good faith is simply irrelevant. The critical issue is whether injury occurred while the city was exercising governmental, as opposed to proprietary, powers or obligations—not whether its agents reasonably believed they were acting lawfully in so conducting themselves.29 More fundamentally, however, the municipality's "governmental" immunity is obviously abrogated by the sovereign's enactment of a statute making it amenable to suit. Section 1983 was just such a statute. By including municipalities within the class of "persons" subject to liability for violations of the Federal Constitution and laws, Congress—the supreme sovereign on matters of federal law30—abolished whatever vestige of the State's sovereign immunity the municipality possessed. 35 The second common-law distinction between municipal functions that protecting the city from suits challenging "discretionary" decisions—was grounded not on the principle of sovereign immunity, but on a concern for separation of powers. A large part of the municipality's responsibilities involved broad discretionary decisions on issues of public policy—decisions that affected large numbers of persons and called for a delicate balancing of competing considerations. For a court or jury, in the guise of a tort suit, to review the reasonableness of the city's judgment on these matters would be an infringement upon the powers properly vested in a coordinate and coequal branch of government. See Johnson v. State, 69 Cal.2d 782, 794, n. 8, 73 Cal.Rptr. 240, 249, 447 P.2d 352, 361, n. 8 (1968) (en banc) ("Immunity for 'discretionary' activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government"). In order to ensure against any invasion into the legitimate sphere of the municipality's policymaking processes, courts therefore refused to entertain suits against the city "either for the non-exercise of, or for the manner in which in good faith it exercises, discretionary powers of a public or legislative character." 2 Dillon § 753, at 862.31 36 Although many, if not all, of a municipality's activities would seem to involve at least some measure of discretion, the influence of this doctrine on the city's liability was not as significant as might be expected. For just as the courts implied an exception to the municipality's immunity for its "governmental" functions, here, too, a distinction was made that had the effect of subjecting the city to liability for much of its tortious conduct. While the city retained its immunity for decisions as to whether the public interest required acting in one manner or another, once any particular decision was made, the city was fully liable for any injuries incurred in the execution of its judgment. See, e. g., Hill v. Boston, 122 Mass. 344, 358-359 (1877) (dicta) (municipality would be immune from liability for damages resulting from its decision where to construct sewers, since that involved a discretionary judgment as to the general public interest; but city would be liable for neglect in the construction or repair of any particular sewer, as such activity is ministerial in nature). See generally C. Rhyne, Municipal Law § 30.4, pp. 736-737 (1957); Williams § 7. Thus municipalities remained liable in damages for a broad range of conduct implementing their discretionary decisions. 37 Once again, an understanding of the rationale underlying the common-law immunity for "discretionary" functions explains why that doctrine cannot serve as the foundation for a good-faith immunity under § 1983. That common-law doctrine merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality. But a municipality has no "discretion" to violate the Federal Constitution; its dictates are absolute and imperative. And when a court passes judgment on the municipality's conduct in a § 1983 action, it does not seek to second-guess the "reasonableness" of the city's decision nor to interfere with the local government's resolution of competing policy considerations. Rather, it looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes. As was stated in Sterling v. Constantin, 287 U.S. 378, 398, 53 S.Ct. 190, 195, 77 L.Ed. 375 (1932): "When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression." 38 In sum, we can discern no "tradition so well grounded in history and reason" that would warrant the conclusion that in enacting § 1 of the Civil Rights Act, the 42d Congress sub silentio extended to municipalities a qualified immunity based on the good faith of their officers. Absent any clearer indication that Congress intended so to limit the reach of a statute expressly designed to provide a "broad remedy for violations of federally protected civil rights," Monell v. New York City Dept. of Social Services, 436 U.S., at 685, 98 S.Ct., at 2033, we are unwilling to suppose that injuries occasioned by a municipality's unconstitutional conduct were not also meant to be fully redressable through its sweep.32 B 39 Our rejection of a construction of § 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violations is compelled both by the legislative purpose in enacting the statute and by considerations of public policy. The central aim of the Civil Rights Act was to provide protection to those persons wronged by the " '[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " Monroe v. Pape, 365 U.S., at 184, 81 S.Ct., at 482 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). By creating an express federal remedy, Congress sought to "enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Monroe v. Pape, supra, 365 U.S., at 172, 81 S.Ct., at 476. 40 How "uniquely amiss" it would be, therefore, if the government itself—"the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct"—were permitted to disavow liability for the injury it has begotten. See Adickes v. Kress & Co., 398 U.S. 144, 190, 90 S.Ct. 1598, 1620, 26 L.Ed.2d 142 (1970) (opinion of BRENNAN, J.). A damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees, and the importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that has been established to protect the very rights it has transgressed. Yet owing to the qualified immunity enjoyed by most government officials, see Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good-faith defense. Unless countervailing considerations counsel otherwise, the injustice of such a result should not be tolerated.33 41 Moreover, § 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. See Robertson v. Wegmann, 436 U.S. 584, 590-591, 98 S.Ct. 1991, 1995, 56 L.Ed.2d 554 (1978); Carey v. Piphus, 435 U.S. 247, 256-257, 98 S.Ct. 1042, 1048-1049, 55 L.Ed.2d 252 (1978). The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens' constitutional rights.34 Furthermore, the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights.35 Such procedures are particularly beneficial in preventing those "systemic" injuries that result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith. Cf. Note, Developments in the Law: Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1218-1219 (1977).36 42 Our previous decisions conferring qualified immunities on various government officials, see supra, at 637-638, are not to be read as derogating the significance of the societal interest in compensating the innocent victims of governmental misconduct. Rather, in each case we concluded that overriding considerations of public policy nonetheless demanded that the official be given a measure of protection from personal liability. The concerns that justified those decisions, however, are less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue.37 43 In Scheuer v. Rhodes, supra, 416 U.S., at 240, 94 S.Ct., at 1688, THE CHIEF JUSTICE identified the two "mutually dependent rationales" on which the doctrine of official immunity rested: 44 "(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good."38 45 The first consideration is simply not implicated when the damages award comes not from the official's pocket, but from the public treasury. It hardly seems unjust to require a municipal defendant which has violated a citizen's constitutional rights to compensate him for the injury suffered thereby. Indeed, Congress enacted § 1983 precisely to provide a remedy for such abuses of official power. See Monroe v. Pape, 365 U.S., at 171-172, 81 S.Ct., at 475-476. Elemental notions of fairness dictate that one who causes a loss should bear the loss. 46 It has been argued, however, that revenue raised by taxation for public use should not be diverted to the benefit of a single or discrete group of taxpayers, particularly where the municipality has at all times acted in good faith. On the contrary, the accepted view is that stated in Thayer v. Boston "that the city, in its corporate capacity, should be liable to make good the damage sustained by an [unlucky] individual, in consequence of the acts thus done." 36 Mass., at 515. After all, it is the public at large which enjoys the benefits of the government's activities, and it is the public at large which is ultimately responsible for its administration. Thus, even where some constitutional development could not have been foreseen by municipal officials, it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights, albeit newly recognized, have been violated. See generally 3 K. Davis, Administrative Law Treatise § 25.17 (1958 and Supp.1970); Prosser § 131, at 978; Michelman, Property, Utility, and Fairness: Some Thoughts on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165 (1967).39 47 The second rationale mentioned in Scheuer also loses its force when it is the municipality, in contrast to the official, whose liability is at issue. At the heart of this justification for a qualified immunity for the individual official is the concern that the threat of personal monetary liability will introduce an unwarranted and unconscionable consideration into the decisionmaking process, thus paralyzing the governing official's decisiveness and distorting his judgment on matters of public policy.40 The inhibiting effect is significantly reduced, if not eliminated, however, when the threat of personal liability is removed. First, as an empirical matter, it is questionable whether the hazard of municipal loss will deter a public officer from the conscientious exercise of his duties; city officials routinely make decisions that either require a large expenditure of municipal funds or involve a substantial risk of depleting the public fisc. See Kostka v. Hogg, 560 F.2d 37, 41 (CA 1 1977). More important, though, is the realization that consideration of the municipality's liability for constitutional violations is quite properly the concern of its elected or appointed officials. Indeed, a decisionmaker would be derelict in his duties if, at some point, he did not consider whether his decision comports with constitutional mandates and did not weigh the risk that a violation might result in an award of damages from the public treasury. As one commentator aptly put it: "Whatever other concerns should shape a particular official's actions, certainly one of them should be the constitutional rights of individuals who will be affected by his actions. To criticize section 1983 liability because it leads decisionmakers to avoid the infringement of constitutional rights is to criticize one of the statute's raisons d'etre."41 IV 48 In sum, our decision holding that municipalities have no immunity from damages liability flowing from their constitutional violations harmonizes well with developments in the common law and our own pronouncements on official immunities under § 1983. Doctrines of tort law have changed significantly over the past century, and our notions of governmental responsibility should properly reflect that evolution. No longer is individual "blameworthiness" the acid test of liability; the principle of equitable loss-spreading has joined fault as a factor in distributing the costs of official misconduct. 49 We believe that today's decision, together with prior precedents in this area, properly allocates these costs among the three principals in the scenario of the § 1983 cause of action: the victim of the constitutional deprivation; the officer whose conduct caused the injury; and the public, as represented by the municipal entity. The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury. The offending official, so long as he conducts himself in good faith, may go about his business secure in the knowledge that a qualified immunity will protect him from personal liability for damages that are more appropriately chargeable to the populace as a whole. And the public will be forced to bear only the costs of injury inflicted by the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell v. New York City Dept. of Social Services, 436 U.S., at 694, 98 S.Ct., at 2038. 50 Reversed. 51 Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice REHNQUIST join, dissenting. 52 The Court today holds that the city of Independence may be liable in damages for violating a constitutional right that was unknown when the events in this case occurred. It finds a denial of due process in the city's failure to grant petitioner a hearing to clear his name after he was discharged. But his dismissal involved only the proper exercise of discretionary powers according to prevailing constitutional doctrine. The city imposed no stigma on petitioner that would require a "name clearing" hearing under the Due Process Clause. 53 On the basis of this alleged deprivation of rights, the Court interprets 42 U.S.C. § 1983 to impose strict liability on municipalities for constitutional violations. This strict liability approach inexplicably departs from this Court's prior decisions under § 1983 and runs counter to the concerns of the 42d Congress when it enacted the statute. The Court's ruling also ignores the vast weight of common-law precedent as well as the current state law of municipal immunity for these reasons, and because this decision will hamper local governments unnecessarily, I dissent. 54 * The Court does not question the District Court's statement of the facts surrounding Owen's dismissal. Ante, at 625. It nevertheless rejects the District Court's conclusion that no due process hearing was necessary because "the circumstances of [Owen's] discharge did not impose a stigma of illegal or immoral conduct on his professional reputation." 421 F.Supp. 1110, 1122 (WD Mo.1976); see ante, at 633-634, n. 13. Careful analysis of the record supports the District Court's view that Owen suffered no constitutional deprivation. A. 55 From 1967 to 1972, petitioner Owen served as Chief of the Independence Police Department at the pleasure of the City Manager.1 Friction between Owen and City Manager Alberg flared openly in early 1972, when charges surfaced that the Police Department's property room was mismanaged. The City Manager initiated a full internal investigation. 56 In early April, the City Auditor reported that the records in the property room were so sparse that he could not conduct an audit. The City Counselor reported that "there was no evidence of any criminal acts, or violation of any state law or municipal ordinances, in the administration of the property room." 560 F.2d 925, 928 (CA8 1977). In a telephone call on April 10, the City Manager asked Owen to resign and offered him another position in the Department. The two met on the following day. Alberg expressed his unhappiness over the property room situation and again requested that Owen step down. When Owen refused, the City Manager responded that he would be fired. 421 F.Supp., at 1114-1115. 57 On April 13, the City Manager asked Lieutenant Cook of the Police Department if he would be willing to take over as Chief. Alberg also released the following statement to the public: 58 "At my direction, the City Counselor's office, [i]n conjunction with the City Auditor ha[s] completed a routine audit of the police property room. 59 "Discrepancies were found in the administration, handling and security of recovered property. There appears to be no evidence to substantiate any allegations of a criminal nature. . . ." 560 F.2d, at 928-929. 60 The District Court found that the City Manager decided on Saturday, April 15, to replace Owen with Lieutenant Cook as Chief of Police. 421 F.Supp., at 1115. Before the decision was announced, however, City Council Member Paul Roberts obtained the internal reports on the property room. At the April 17 Council meeting, Roberts read a prepared statement that accused police officials of "gross inefficiencies" and various "inappropriate" actions. Id., at 1116, n. 2. He then moved that the Council release the reports to the public, refer them to the Prosecuting Attorney of Jackson County for presentation to a grand jury, and recommend to the City Manager that he "take all direct and appropriate action permitted under the Charter. . . ." Ibid. The Council unanimously approved the resolution. 61 On April 18, Alberg "implemented his prior decision to discharge [Owen] as Chief of Police." 560 F.2d, at 929. The notice of termination stated simply that Owen's employment was "[t]erminated under the provisions of Section 3.3(1) of the City Charter." App. 17. That charter provision grants the City Manager complete authority to remove "directors" of administrative departments "when deemed necessary for the good of the service." Owen's lawyer requested a hearing on his client's termination. The Assistant City Counselor responded that "there is no appellate procedure or forum provided by the Charter or ordinances of the City of Independence, Missouri, relating to the dismissal of Mr. Owen." Id., at 27. 62 The City Manager referred to the Prosecuting Attorney all reports on the property room. The grand jury returned a "no true bill," and there has been no further official action on the matter. Owen filed a state lawsuit against Councilman Roberts and City Manager Alberg, asking for damages for libel, slander, and malicious prosecution. Alberg, won a dismissal of the state-law claims against him, and Councilman Roberts reached a settlement with Owen.2 63 This federal action was filed in 1976. Owen alleged that he was denied his liberty interest in his professional reputation when he was dismissed without formal charges or a hearing. Id., at 8, 10.3 B 64 Due process requires a hearing on the discharge of a government employee "if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination. . . . " Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977) (per curiam). This principle was first announced in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), which was decided in June 1972, 10 weeks after Owen was discharged. The pivotal question after Roth is whether the circumstances of the discharge so blackened the employee's name as to impair his liberty interest in his professional reputation. Id., at 572-575, 92 S.Ct., at 2706-2708. 65 The events surrounding Owen's dismissal "were prominently reported in local newspapers." 560 F.2d, at 930. Doubtless, the public received a negative impression of Owen's abilities and performance. But a "name clearing" hearing is not necessary unless the employer makes a public statement that "might seriously damage [the employee's] standing and associations in his community." Board of Regents v. Roth, supra, at 573, 92 S.Ct., at 2707. No hearing is required after the "discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge." Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976). 66 The City Manager gave no specific reason for dismissing Owen. Instead, he relied on his discretionary authority to discharge top administrators "for the good of the service." Alberg did not suggest that Owen "had been guilty of dishonesty, or immorality." Board of Regents v. Roth, supra, 408 U.S., at 573, 92 S.Ct., at 2707. Indeed, in his "property room" statement of April 13, Alberg said that there was "no evidence to substantiate any allegations of a criminal nature." This exoneration was reinforced by the grand jury's refusal to initiate a prosecution in the matter. Thus, nothing in the actual firing cast such a stigma on Owen's professional reputation that his liberty was infringed. 67 The Court does not address directly the question whether any stigma was imposed by the discharge. Rather, it relies on the Court of Appeals' finding that stigma derived from events "connected with" the firing. Ante, at 633; 589 F.2d, at 337. That court attached great significance to the resolution adopted by the City Council at its April 17 meeting. But the resolution merely recommended that Alberg take "appropriate action," and the District Court found no "causal connection" between events in the City Council and the firing of Owen. 421 F.Supp., at 1121. Two days before the Council met, Alberg already had decided to dismiss Owen. Indeed, Councilman Roberts stated at the meeting that the City Manager had asked for Owen's resignation. Id., at 1116, n. 2.4 68 Even if the Council resolution is viewed as part of the discharge process, Owen has demonstrated no denial of his liberty. Neither the City Manager nor the Council cast any aspersions on Owen's character. Alberg absolved all connected with the property room of any illegal activity, while the Council resolution alleged no wrongdoing. That events focused public attention upon Owen's dismissal is undeniable; such attention is a condition of employment—and of discharge—for high government officials. Nevertheless, nothing in the actions of the City Manager or the City Council triggered a constitutional right to a name-clearing hearing.5 69 The statements by Councilman Roberts were neither measured nor benign, but they provide no basis for this action against the city of Independence. Under Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978), the city cannot be held liable for Roberts' statements on a theory of respondeat superior. That case held that § 1983 makes municipalities liable for constitutional deprivations only if the challenged action was taken "pursuant to official municipal policy of some nature. . . . " As the Court noted, "a municipality cannot be held liable solely because it employs a tortfeasor. . . . " 436 U.S., at 691, 98 S.Ct., at 2036. (emphasis in original). The statements of a single councilman scarcely rise to the level of municipal policy.6 70 As the District Court concluded, "[a]t most, the circumstances . . . suggested that, as Chief of Police, [Owen] had been an inefficient administrator." 421 F.Supp., at 1122. This Court now finds unconstitutional stigma in the interaction of unobjectionable official acts with the unauthorized statements of a lone councilman who had no direct role in the discharge process. The notoriety that attended Owen's firing resulted not from any city policy, but solely from public misapprehension of the reasons for a purely discretionary dismissal. There was no constitutional injury; there should be no liability.7 II 71 Having constructed a constitutional deprivation from the valid exercise of governmental authority, the Court holds that municipalities are strictly liable for their constitutional torts. Until two years ago, municipal corporations enjoyed absolute immunity from § 1983 claims. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). But Monell v. New York City Dept. of Social Services, supra, held that local governments are "persons" within the meaning of the statute, and thus are liable in damages for constitutional violations inflicted by municipal policies. 436 U.S., at 690, 98 S.Ct., at 2035. Monell did not address the question whether municipalities might enjoy a qualified immunity or good-faith defense against § 1983 actions. 436 U.S., at 695, 701, 98 S.Ct., at 2038, 2041; id., at 713-714, 98 S.Ct., at 2047 (POWELL, J., concurring). 72 After today's decision, municipalities will have gone in two short years from absolute immunity under § 1983 to strict liability. As a policy matter, I believe that strict municipal liability unreasonably subjects local governments to damages judgments for actions that were reasonable when performed. It converts municipal governance into a hazardous slalom through constitutional obstacles that often are unknown and unknowable. 73 The Court's decision also impinges seriously on the prerogatives of municipal entities created and regulated primarily by the States. At the very least, this Court should not initiate a federal intrusion of this magnitude in the absence of explicit congressional action. Yet today's decision is supported by nothing in the text of § 1983. Indeed, it conflicts with the apparent intent of the drafters of the statute, with the common law of municipal tort liability, and with the current state law of municipal immunities. A. 74 Section 1983 provides a private right of action against "[e]very person" acting under color of state law who imposes or causes to be imposed a deprivation of constitutional rights.8 Although the statute does not refer to immunities, this Court has held that the law "is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them." Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976); see Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). 75 This approach reflects several concerns. First, the common-law traditions of immunity for public officials could not have been repealed by the "general language" of § 1983. Tenney v. Brandhove, supra, at 376, 71 S.Ct., at 788; see Imbler v. Pachtman, supra, 424 U.S., at 421-424, 96 S.Ct., at 990-992; Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967). In addition, "the public interest requires decisions and action to enforce laws for the protection of the public." Scheuer v. Rhodes, 416 U.S. 232, 241, 94 S.Ct. 1683, 1689, 40 L.Ed.2d 90 (1974). Because public officials will err at times, "[t]he concept of immunity assumes . . . that it is better to risk some error and possibly injury from such error than not to decide or act at all." Id., at 242, 94 S.Ct., at 1689; see Wood v. Strickland, 420 U.S. 308, 319-320, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975). By granting some immunity to governmental actors, the Court has attempted to ensure that public decisions will not be dominated by fears of liability for actions that may turn out to be unconstitutional. Public officials "cannot be expected to predict the future course of constitutional law. . . . " Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 860, 55 L.Ed.2d 24 (1978). 76 In response to these considerations, the Court has found absolute immunity from § 1983 suits for state legislators, Tenney v. Brandhove, supra, judges, Pierson v. Ray, supra, 386 U.S., at 553-555, 87 S.Ct., at 1217-1218, and prosecutors in their role as advocates for the State, Imbler v. Pachtman, supra. Other officials have been granted a qualified immunity that protects them when in good faith they have implemented policies that reasonably were thought to be constitutional. This limited immunity extends to police officers, Pierson v. Ray, supra, 386 U.S., at 555-558, 87 S.Ct., at 1218-1219, state executive officers, Scheuer v. Rhodes, supra, local school board members, Wood v. Strickland, supra, the superintendent of a state hospital, O'Connor v. Donaldson, 422 U.S. 563, 576-577, 95 S.Ct. 2486, 2494, 45 L.Ed.2d 396 (1975), and prison officials, Procunier v. Navarette, supra. 77 The Court today abandons any attempt to harmonize § 1983 with traditional tort law. It points out that municipal immunity may be abrogated by legislation. Thus, according to the Court, Congress "abolished" municipal immunity when it included municipalities "within the class of 'persons' subject to liability" under § 1983. Ante, at 647. 78 This reasoning flies in the face of our prior decisions under this statute. We have held repeatedly that "immunities 'well grounded in history and reason' [were not] abrogated 'by covert inclusion in the general language' of § 1983." Imbler v. Pachtman, supra, at 418, 96 S.Ct., at 989, quoting Tenney v. Brandhove, supra, at 376, 71 S.Ct., at 788. See Scheuer v. Rhodes, supra, at 243-244, 94 S.Ct., at 1689-1690; Pierson v. Ray, supra, at 554, 87 S.Ct., at 1217. The peculiar nature of the Court's position emerges when the status of executive officers under § 1983 is compared with that of local governments. State and local executives are personally liable for bad-faith or unreasonable constitutional torts. Although Congress had the power to make those individuals liable for all such torts, this Court has refused to find an abrogation of traditional immunity in a statute that does not mention immunities. Yet the Court now views the enactment of § 1983 as a direct abolition of traditional municipal immunities. Unless the Court is overruling its previous immunity decisions, the silence in § 1983 must mean that the 42d Congress mutely accepted the immunity of executive officers, but silently rejected common-law municipal immunity. I find this interpretation of the statute singularly implausible. 2 79 Important public policies support the extension of qualified immunity to local governments. First, as recognized by the doctrine of separation of powers, some governmental decisions should be at least presumptively insulated from judicial review. Mr. Chief Justice Marshall wrote in Marbury v. Madison, 1 Cranch 137, 170, 2 L.Ed. 60 (1803), that "[t]he province of the court is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion." Marshall stressed the caution with which courts must approach "[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive." The allocation of public resources and the operational policies of the government itself are activities that lie peculiarly within the competence of executive and legislative bodies. When charting those policies, a local official should not have to gauge his employer's possible liability under § 1983 if he incorrectly though reasonably and in good faith—forecasts the course of constitutional law. Excessive judicial intrusion into such decisions can only distort municipal decisionmaking and discredit the courts. Qualified immunity would provide presumptive protection for discretionary acts, while still leaving the municipality liable for bad faith or unreasonable constitutional deprivations. 80 Because today's decision will inject constant consideration of § 1983 liability into local decisionmaking, it may restrict the independence of local governments and their ability to respond to the needs of their communities. Only this Term, we noted that the "point" of immunity under § 1983 "is to forestall an atmosphere of intimidation that would conflict with [officials'] resolve to perform their designated functions in a principled fashion." Ferri v. Ackerman, 444 U.S. 193, 203-204, 100 S.Ct. 402, 409, 62 L.Ed.2d 355 (1979). 81 The Court now argues that local officials might modify their actions unduly if they face personal liability under § 1983, but that they are unlikely to do so when the locality itself will be held liable. Ante, at 655-656. This contention denigrates the sense of responsibility of municipal officers, and misunderstands the political process. Responsible local officials will be concerned about potential judgments against their municipalities for alleged constitutional torts. Moreover, they will be accountable within the political system for subjecting the municipality to adverse judgments. If officials must look over their shoulders at a strict municipal liability for unknowable constitutional deprivations, the resulting degree of governmental paralysis will be little different from that caused by fear of personal liability. Cf. Wood v. Strickland, 420 U.S., at 319-320, 95 S.Ct., at 999; Scheuer v. Rhodes, 416 U.S., at 242, 94 S.Ct., at 1689.9 82 In addition, basic fairness requires a qualified immunity for municipalities. The good-faith defense recognized under § 1983 authorizes liability only when officials acted with malicious intent or when they "knew or should have known that their conduct violated the constitutional norm." Procunier v. Navarette, 434 U.S., at 562, 98 S.Ct., at 860. The standard incorporates the idea that liability should not attach unless there was notice that a constitutional right was at risk. This idea applies to governmental entities and individual officials alike. Constitutional law is what the courts say it is, and—as demonstrated by today's decision and its precursor, Monell —even the most prescient lawyer would hesitate to give a firm opinion on matters not plainly settled. Municipalities, often acting in the utmost good faith, may not know or anticipate when their action or inaction will be deemed a constitutional violation.10 83 The Court nevertheless suggests that, as a matter of social justice, municipal corporations should be strictly liable even if they could not have known that a particular action would violate the Constitution. After all, the Court urges, local governments can "spread" the costs of any judgment across the local population. Ante, at 655. The Court neglects, however, the fact that many local governments lack the resources to withstand substantial unanticipated liability under § 1983. Even enthusiastic proponents of municipal liability have conceded that ruinous judgments under the statute could imperil local governments. E. g., Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922, 958 (1976).11 By simplistically applying the theorems of welfare economics and ignoring the reality of municipal finance, the Court imposes strict liability on the level of government least able to bear it.12 For some municipalities, the result could be a severe limitation on their ability to serve the public. B 84 The Court searches at length—and in vain—for legal authority to buttress its policy judgment. Despite its general statements to the contrary, the Court can find no support for its position in the debates on the civil rights legislation that included § 1983. Indeed, the legislative record suggests that the Members of the 42d Congress would have been dismayed by this ruling. Nor, despite its frequent citation of authorities that are only marginally relevant, can the Court rely on the traditional or current law of municipal tort liability. Both in the 19th century and now, courts and legislatures have recognized the importance of limiting the liability of local governments for official torts. Each of these conventional sources of law points to the need for qualified immunity for local governments. 85 * The modern dispute over municipal liability under § 1983 has focused on the defeat of the Sherman amendment during the deliberations on the Civil Rights Act of 1871. E. g., Monroe v. Pape, 365 U.S., at 187-191, 81 S.Ct., at 484-486; Monell v. New York City Dept. of Social Services, 436 U.S., at 664-683, 98 S.Ct., at 2022-2032. Senator Sherman proposed that local governments be held vicariously liable for constitutional deprivations caused by riots within their boundaries. As originally drafted, the measure imposed liability even if municipal officials had no actual knowledge of the impending disturbance.13 The amendment which did not affect the part of the Civil Rights Act that we know as § 1983, was approved by the Senate but rejected by the House of Representatives. 436 U.S., at 666, 98 S.Ct., at 2023. After two revisions by Conference Committees, both Houses passed what is now codified as 42 U.S.C. § 1986. The final version applied not just to local governments but to all "persons," and it imposed no liability unless the defendant knew that a wrong was "about to be committed."14 86 Because Senator Sherman initially proposed strict municipal liability for constitutional torts, the discussion of his amendment offers an invaluable insight into the attitudes of his colleagues on the question now before the Court. Much of the resistance to the measure flowed from doubts as to Congress' power to impose vicarious liability on local governments. Monell v. New York City Dept. of Social Services, supra, 436 U.S., at 673-683, 98 S.Ct., at 2027-2032; id., at 706, 98 S.Ct., at 2043 (POWELL, J., concurring). But opponents of the amendment made additional arguments that strongly support recognition of qualified municipal immunity under § 1983. 87 First, several legislators expressed trepidation that the proposal's strict liability approach could bankrupt local governments. They warned that liability under the proposal could bring municipalities "to a dead stop." Cong.Globe, 42d Cong., 1st Sess., 763 (1871) (Sen. Casserly). See id., at 762 (Sen. Stevenson); id., at 772 (Sen. Thurman). Representative Bingham argued that municipal liability might be so great under the measure as to deprive a community "of the means of administering justice." Id., at 798. Some Congressmen argued that strict liability would inhibit the effective operation of municipal corporations. The possibility of liability, Representative Kerr insisted, could prevent local officials from exercising "necessary and customary functions." Id., at 789. See id., at 763 (Sen. Casserly); id., at 808 (Rep. Garfield). 88 Most significant, the opponents objected to liability imposed without any showing that a municipality knew of an impending constitutional deprivation. Senator Sherman defended this feature of the amendment as a characteristic of riot Acts long in force in England and this country. Id., at 760. But Senator Stevenson argued against creating "a corporate liability for personal injury which no prudence or foresight could have prevented." Id., at 762. In the most thorough critique of the amendment, Senator Thurman carefully reviewed the riot Acts of Maryland and New York. He emphasized that those laws imposed liability only when a plaintiff proved that the local government had both notice of the impending injury and the power to prevent it. Id., at 771. 89 "Is not that right? Why make the county, or town, or parish liable when it had no reason whatsoever to anticipate that any such crime was about to be committed, and when it had no knowledge of the commission of the crime until after it was committed? What justice is there in that?" Ibid. 90 These concerns were echoed in the House of Representatives. Representative Kerr complained that "it is not required, before liability shall attach, that it shall be known that there was any intention to commit these crimes, so as to fasten liability justly upon the municipality." Id., at 788. He denounced the "total and absolute absence of notice, constructive or implied, within any decent limits of law or reason," adding that the proposal "takes the property of one and gives it to another by mere force, without right, in the absence of guilt or knowledge, or the possibility of either." Ibid. Similarly, Representative Willard argued that liability "is only warranted when the COMMUNITY . . . HAS PROVED FAITHLESS TO ITS DUTIES. . . ." id., at 791. he criticized the absence of a requirement that it be "prov[ed] in court that there has been any default, any denial, any neglect on the part of the county, city, town, or parish to give citizens the full protection of the laws." Ibid. 91 Partly in response to these objections, the amendment as finally enacted conditioned liability on a demonstration that the defendant knew that constitutional rights were about to be denied. Representative Poland introduced the new measure, noting that "any person who has knowledge of any of the offenses named . . . shall [have a] duty to use all reasonable diligence within his power to prevent it." Id., at 804 (emphasis supplied). The same point was made by Representative Shellabarger, the sponsor of the entire Act and, with Representative Poland, a member of the Conference Committee that produced the final draft. Id., at 804-805; see id., at 807 (Rep. Garfield). 92 On the Senate side, one conferee stated that under the final version 93 "in order to make the [municipal] corporation liable as a body it must appear in some way to the satisfaction of the jury that the officers of the corporation, those persons, whose duty it was to repress tumult, if they could, had reasonable notice of the fact that there was a tumult, or was likely to be one, and neglected to take the necessary means to prevent it." Id., at 821 (Sen. Edmunds). 94 Senator Sherman disliked the revised provision. He complained that "before you can make [a person] responsible you have got to show that they had knowledge that the specific wrongs upon the particular person were about to be wrought." Ibid.15 95 These objections to the Sherman amendment apply with equal force to strict municipal liability under § 1983. Just as the 42d Congress refused to hold municipalities vicariously liable for deprivations that could not be known beforehand, this Court should not hold those entities strictly liable for deprivations caused by actions that reasonably and in good faith were thought to be legal. The Court's approach today, like the Sherman amendment, could spawn onerous judgments against local governments and distort the decisions of officers who fear municipal liability for their actions. Congress' refusal to impose those burdens in 1871 surely undercuts any historical argument that federal judges should do so now. 96 The Court declares that its rejection of qualified immunity is "compelled" by the "legislative purpose" in enacting § 1983. Ante, at 650. One would expect powerful documentation to back up such a strong statement. Yet the Court notes only three features of the legislative history of the Civil Rights Act. Far from "compelling" the Court's strict liability approach, those features of the congressional record provide scant support for its position. 97 First, the Court reproduces statements by Congressmen attesting to the broad remedial scope of the law. Ante, at 636, and n. 17. In view of our many decisions recognizing the immunity of officers under § 1983, supra, at 666-667, those statements plainly shed no light on congressional intent with respect to immunity under the statute. Second, the Court cites Senator Stevenson's remark that frequently "a statutory liability has been created against municipal corporations for injuries resulting from a neglect of corporate duty." Ante, at 642-643, citing Cong.Globe, 42d Cong., 1st Sess., 762 (1871). The Senator merely stated the unobjectionable proposition that municipal immunity could be qualified or abolished by statute. This fragmentary observation provides no basis for the Court's version of the legislative history. 98 Finally, the Court emphasizes the lack of comment on municipal immunity when opponents of the bill did discuss the immunities of government officers. "Had there been a similar common-law immunity for municipalities, the bill's opponents doubtless would have raised the spectre of its destruction, as well." Ante, at 643-644. This is but another example of the Court's continuing willingness to find meaning in silence. This example is particularly noteworthy because the very next sentence in the Court's opinion concedes: "To be sure, there were two doctrines that afforded municipal corporations some measure of protection from tort liability." Ante, at 644. Since the opponents of the Sherman amendment repeatedly expressed their conviction that strict municipal liability was unprecedented and unwise, the failure to recite the theories of municipal immunity is of no relevance here. In any event, that silence cannot contradict the many contemporary judicial decisions applying that immunity. See infra, at 677-678, and nn. 16, 17. 2 99 The Court's decision also runs counter to the common law in the 19th century, which recognized substantial tort immunity for municipal actions. E. g., 2 J. Dillon, Law of Municipal Corporations §§ 753, 764, pp. 862-863, 875-876 (2d ed. 1873); W. Williams, Liability of Municipal Corporations for Tort 9, 16 (1901). Nineteenth-century courts generally held that municipal corporations were not liable for acts undertaken in their "governmental," as opposed to their "proprietary," capacity.16 Most States now use other criteria for determining when a local government should be liable for damages. See infra, at 681-683. Still, the governmental/proprietary distinction retains significance because it was so widely accepted when § 1983 was enacted. It is inconceivable that a Congress thoroughly versed in current legal doctrines, see Monell v. New York City Dept. of Social Services, 436 U.S., at 669, 98 S.Ct., at 2025, would have intended through silence to create the strict liability regime now imagined by this Court. 100 More directly relevant to this case is the common-law distinction between the "discretionary" and "ministerial" duties of local governments. This Court wrote in Harris v. District of Columbia, 256 U.S. 650, 652, 41 S.Ct. 610, 610, 65 L.Ed. 1146 (1921): "[W]hen acting in good faith municipal corporations are not liable for the manner in which they exercise discretionary powers of a public or legislative character." See Weightmann v. The Corporation of Washington, 1 Black 39, 49-50, 17 L.Ed. 52 (1862). The rationale for this immunity derives from the theory of separation of powers. In Carr v. The Northern Liberties, 35 Pa. 324, 329 (1860), the Pennsylvania Supreme Court explained why a local government was immune from recovery for damage caused by an inadequate town drainage plan. 101 "[H]ow careful we must be that courts and juries do not encroach upon the functions committed to other public officers. It belongs to the province of town councils to direct the drainage of our towns, according to the best of their means and discretion, and we cannot directly or indirectly control them in either. No law allows us to substitute the judgment of a jury . . . for that of the representatives of the town itself, to whom the business is especially committed by law." That reasoning, frequently applied in the 19th century,17 parallels the theory behind qualified immunity under § 1983. This Court has recognized the importance of preserving the autonomy of executive bodies entrusted with discretionary powers. Scheuer v. Rhodes held that executive officials who have broad responsibilities must enjoy a "range of discretion [that is] comparably broad." 416 U.S., at 247, 94 S.Ct., at 1692. Consequently, the immunity available under § 1983 varies directly with "the scope of discretion and responsibilities of the office . . . ." 416 U.S., at 247, 94 S.Ct., at 1692. Strict municipal liability can only undermine that discretion.18 102 The lack of support for the Court's view of the common law is evident in its reliance on Thayer v. Boston, 36 Mass. 511 (1837), as its principal authority. Ante, at 641-642. Thayer did hold broadly that a city could be liable for the authorized acts of its officers. 36 Mass., at 516. But Thayer was limited severely by later Massachusetts decisions. Bigelow v. Inhabitants of Randolph, 80 Mass. 541, 544-545 (1860), ruled that Thayer applied only to situations involving official malfeasance—or wrongful, bad-faith actions—not to actions based on neglect or nonfeasance. See Child v. Boston, 86 Mass. 41 (1862); Buttrick v. Lowell, 83 Mass. 172 (1861). Finally, Hill v. Boston, 122 Mass. 344, 359 (1877), squarely repudiated the broad holding of Thayer and limited municipal liability to acts performed in the proprietary interest of the municipality.19 3 103 Today's decision also conflicts with the current law in 44 States and the District of Columbia. All of those jurisdictions provide municipal immunity at least analogous to a "good faith" defense against liability for constitutional torts. Thus, for municipalities in almost 90% of our jurisdictions, the Court creates broader liability for constitutional deprivations than for state-law torts. 104 Twelve States have laws creating municipal tort liability but barring damages for injuries caused by discretionary decisions or by the good-faith execution of a validly enacted, though unconstitutional, regulation.20 Municipalities in those States have precisely the form of qualified immunity that this Court has granted to executive officials under § 1983. Another 11 States provide even broader immunity for local governments. Five of those have retained the governmental/proprietary distinction,21 while Arkansas and South Dakota grant even broader protection for municipal corporations.22 Statutes in four more States protect local governments from tort liability except for particular injuries not relevant to this case, such as those due to motor vehicle accidents or negligent maintenance of public facilities.23 In Iowa, local governments are not liable for injuries caused by the execution with due care of any "officially enacted" statute or regulation.24 105 Sixteen States and the District of Columbia follow the traditional rule against recovery for damages imposed by discretionary decisions that are confided to particular officers or organs of government.25 Indeed, the leading commentators on governmental tort liability have noted both the appropriateness and general acceptance of municipal immunity for discretionary acts. See Restatement (Second) of Torts § 895C(2) and Comment g (1979); K. Davis, Administrative Law of the Seventies § 25.13 (1976); W. Prosser, Law of Torts 986-987 (4th ed. 1971). In four States, local governments enjoy complete immunity from tort actions unless they have taken out liability insurance.26 Only five States impose the kind of blanket liability constructed by the Court today.27 C 106 The Court turns a blind eye to this overwhelming evidence that municipalities have enjoyed a qualified immunity and to the policy considerations that for the life of this Republic have justified its retention. This disregard of precedent and policy is especially unfortunate because suits under § 1983 typically implicate evolving constitutional standards. A good-faith defense is much more important for those actions than in those involving ordinary tort liability. The duty not to run over a pedestrian with a municipal bus is far less likely to change than is the rule as to what process, if any, is due the busdriver if he claims the right to a hearing after discharge. 107 The right of a discharged government employee to a "name clearing" hearing was not recognized until our decision in Board of Regents v. Roth 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). That ruling was handed down 10 weeks after Owen was discharged and 8 weeks after the city denied his request for a hearing. By stripping the city of any immunity, the Court punishes it for failing to predict our decision in Roth. As a result, local governments and their officials will face the unnerving prospect of crushing damages judgments whenever a policy valid under current law is later found to be unconstitutional. I can see no justice or wisdom in that outcome. 1 Title 42 U.S.C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 2 Under § 3.3(1) of the city's charter, the City Manager has sole authority to "[a]ppoint, and when deemed necessary for the good of the service, lay off, suspend, demote, or remove all directors, or heads, of administrative departments and all other administrative officers and employees of the city. . . . " 3 Alberg returned from his vacation on the morning of April 17, and immediately met informally with four members of the City Council. Although the investigation of the Police Department was discussed, and although Alberg testified that he had found a replacement for petitioner by that time, he did not inform the Council members of his intention to discharge petitioner. 4 The letter, dated April 15, 1972, stated in part: "My counsel . . . have advised me that even though the City Charter may give you authority to relieve me, they also say you cannot do so without granting me my constitutional rights of due process, which includes a written charge and specifications, together with a right to a public hearing and to be represented by counsel and to cross-examine those who may appear against me. * * * * * "In spite of your recent investigation and your public statement given to the public press, your relief and discharge of me without a full public hearing upon written charges will leave in the minds of the public and those who might desire to have my services, a stigma of personal wrongdoing on my part. "Such action by you would be in violation of my civil rights as granted by the Constitution and Congress of the United States and you would be liable in damages to me. Further it would be in violation of the Missouri Administrative Procedure Act. "May I have an expression from you that you do not intend to relieve me or in the alternative give me a written charge and specifications of your basis for your grounds of intention to relieve me and to grant me a public hearing with a reasonable opportunity to respond to the charge and a right to be represented by counsel." City Manager Alberg stated that he did not receive the letter until after petitioner's discharge. 5 Roberts' statement, which is reproduced in full in 421 F.Supp. 1110, 1116, n. 2 (1976), in part recited: "On April 2, 1972, the City Council was notified of the existence of an investigative report concerning the activities of the Chief of Police of the City of Independence, certain police officers and activities of one or more other City officials. On Saturday, April 15th for the first time I was able to see these 27 voluminous reports. The contents of these reports are astoundingly shocking and virtually unbelievable. They deal with the disappearance of 2 or more television sets from the police department and signed statement that they were taken by the Chief of Police for his own personal use. "The reports show that numerous firearms properly in the police department custody found their way into the hands of others including undesirables and were later found by other law enforcement agencies. "Reports whow [sic ] that narcotics held by the Independence Missouri Chief of Police have mysteriously disappeared. Reports also indicate money has mysteriously disappeared. Reports show that traffic tickets have been manipulated. The reports show inappropriate requests affecting the police court have come from high ranking police officials. Reports indicate that things have occurred causing the unusual release of felons. The reports show gross inefficiencies on the part of a few of the high ranking officers of the police department. "In view of the contents of these reports, I feel that the information in the reports backed up by signed statements taken by investigators is so bad that the council should immediately make available to the news media access to copies of all of these 27 voluminous investigative reports so the public can be told what has been going on in Independence. I further believe that copies of these reports should be turned over and referred to the prosecuting attorney of Jackson County, Missouri for consideration and presentation to the next Grand Jury. I further insist that the City Manager immediately take direct and appropriate action, permitted under the Charter, against such persons as are shown by the investigation to have been involved." 6 Ironically, the official minutes of the City Council meeting indicate that concern was expressed by some members about possible adverse legal consequences that could flow from their release of the reports to the media. The City Counselor assured the Council that although an action might be maintained against any witnesses who made unfounded accusations, "the City does have governmental immunity in this area . . . and neither the Council nor the City as a municipal corporation can be held liable for libelous slander." App. 20-23. 7 See n. 2, supra. 8 The investigation and its culmination in petitioner's firing received front-page attention in the local press. See, e. g., "Lid Off Probe, Council Seeks Action," Independence Examiner, Apr. 18, 1972, Tr. 25; "Independence Accusation. Police Probe Demanded," Kansas City Times, Apr. 18, 1972, Tr. 24-25; "Probe Culminates in Chief's Dismissal," Independence Examiner, Apr. 19, 1972, Tr. 26; "Police Probe Continues; Chief Ousted," Community Observer, Apr. 20, 1972, Tr. 26. 9 Petitioner did not join former Councilman Roberts in the instant litigation. A separate action seeking defamation damages was brought in state court against Roberts and Alberg in their individual capacities. Petitioner dismissed the state suit against Alberg and reached a financial settlement with Roberts. See 560 F.2d 925, 930 (CA8 1977). 10 The District Court, relying on Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), held that § 1983 did not create a cause of action against the city, but that petitioner could base his claim for relief directly on the Fourteenth Amendment. On the merits, however, the court determined that petitioner's discharge did not deprive him of any constitutionally protected property interest because, as an untenured employee, he possessed neither a contractual nor a de facto right to continue employment as Chief of Police. Similarly, the court found that the circumstances of petitioner's dismissal did not impose a stigma of illegal or immoral conduct on his professional reputation, and hence did not deprive him of any liberty interest. The District Court offered three reasons to support its conclusion: First, because the actual discharge notice stated only that petitioner was "[t]erminated under the provisions of Section 3.3(1) of the City Charter," nothing in his official record imputed any stigmatizing conduct to him. Second, the court found that the City Council's actions had no causal connection to petitioner's discharge, for City Manager Alberg had apparently made his decision to hire a new police chief before the Council's April 17th meeting. Lastly, the District Court determined that petitioner was "completely exonerated" from any charges of illegal or immoral conduct by the City Counselor's investigative report, Alberg's public statements, and the grand jury's return of a "no true bill." 421 F.Supp., at 1121-1122. As an alternative ground for denying relief, the District Court ruled that the city was entitled to assert, and had in fact established, a qualified immunity against liability based on the good faith of the individual defendants who acted as its agents: "[D]efendants have clearly shown by a preponderance of the evidence that neither they, nor their predecessors, were aware in April 1972, that, under the circumstances, the Fourteenth Amendment accorded plaintiff the procedural rights of notice and a hearing at the time of his discharge. Defendants have further proven that they cannot reasonably be charged with constructive notice of such rights since plaintiff was discharged prior to the publication of the Supreme Court decisions in Roth v. Board of Regents, [408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)], and Perry v. Sindermann, [408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)]." Id., at 1123. 11 Both parties had appealed from the District Court's decision. On respondents' challenge to the court's assumption of subject-matter jurisdiction under 28 U.S.C. § 1331, the Court of Appeals held that the city was subject to suit for reinstatement and backpay under an implied right of action arising directly from the Fourteenth Amendment. 560 F.2d, at 932-934. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Because the Court of Appeals concluded that petitioner's claim could rest directly on the Fourteenth Amendment, it saw no need to decide whether he could recover backpay under § 1983 from the individual defendants in their official capacities as part of general equitable relief, even though the award would be paid by the city. 560 F.2d, at 932. 12 As compensation for the denial of his constitutional rights, the Court of Appeals awarded petitioner damages in lieu of backpay. The court explained that petitioner's termination without a hearing must be considered a nullity, and that ordinarily he ought to remain on the payroll and receive wages until a hearing is held and a proper determination on his retention is made. But because petitioner had reached the mandatory retirement age during the course of the litigation, he could not be reinstated to his former position. Thus the compensatory award was to be measured by the amount of money petitioner would likely have earned to retirement had he not been deprived of his good name by the city's actions, subject to mitigation by the amounts actually earned, as well as by the recovery from Councilman Roberts in the state defamation suit. The Court of Appeals rejected the municipality's assertion of a good-faith defense, relying upon a footnote in Wood v. Strickland, 420 U.S. 308, 314-315, n. 6, 95 S.Ct. 992, 997, n. 6, 43 L.Ed.2d 214 (1975) ("immunity from damages does not ordinarily bar equitable relief as well"), and two of its own precedents awarding backpay in § 1983 actions against school boards. See Wellner v. Minnesota State Jr. College Bd., 487 F.2d 153 (CA 8 1973); Cooley v. Board of Educ. of Forrest City School Dist., 453 F.2d 282 (CA 8 1972). The court concluded that the primary justification for a qualified immunity—the fear that public officials might hesitate to discharge their duties if faced with the prospect of personal monetary liability—simply did not exist where the relief would be borne by a governmental unit rather than the individual officeholder. In addition, the Court of Appeals seemed to take issue with the District Court's finding of good faith on the part of the City Council: "The city officials may have acted in good faith in refusing the hearing, but lack of good faith is evidenced by the nature of the unfair attack made upon the appellant by Roberts in the official conduct of the City's business. The District Court did not address the good faith defense in light of Roberts' defamatory remarks." 560 F.2d, at 941. 13 Although respondents did not cross petition on this issue, they have raised a belated challenge to the Court of Appeals' ruling that petitioner was deprived of a protected "liberty" interest. See Brief for Respondents 45-46. We find no merit in their contention, however, and decline to disturb the determination of the court below. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971), held that "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." In Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972), we explained that the dismissal of a government employee accompanied by a "charge against him that might seriously damage his standing and associations in his community" would qualify as something "the government is doing to him," so as to trigger the due process right to a hearing at which the employee could refute the charges and publicly clear his name. In the present case, the city through the unanimous resolution of the City Council—released to the public an allegedly false statement impugning petitioner's honesty and integrity. Petitioner was discharged the next day. The Council's accusations received extensive coverage in the press, and even if they did not in point of fact "cause" petitioner's discharge, the defamatory and stigmatizing charges certainly "occur[red] in the course of the termination of employment." Cf. Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976). Yet the city twice refused petitioner's request that he be given written specification of the charges against him and an opportunity to clear his name. Under the circumstances, we have no doubt that the Court of Appeals correctly concluded that the city's actions deprived petitioner of liberty without due process of law. 14 Cf. Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975) ("Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student"). 15 The Courts of Appeals are divided on the question whether local governmental units are entitled to a qualified immunity based on the good faith of their officials. Compare Bertot v. School Dist. No. 1, 613 F.2d 245 (CA10 1979) (en banc); Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569 (CA7 1975), and Hander v. San Jacinto Jr. College, 519 F.2d 273 (CA5), rehearing denied, 522 F.2d 204 (1975), all refusing to extend a qualified immunity to the governmental entity, with Paxman v. Campbell, 612 F.2d 848 (CA4 1980) (en banc), and Sala v. County of Suffolk, 604 F.2d 207 (CA2 1979), granting defendants a "good-faith" immunity. 16 See n. 1, supra. 17 As we noted in Monell v. New York City Dept. of Social Services, see 436 U.S., at 685-686, n. 45, 98 S.Ct., at 2033-2034, n. 45, even the opponents of § 1 acknowledged that its language conferred upon the federal courts the entire power that Congress possessed to remedy constitutional violations. The remarks of Senator Thurman are illustrative: "[This section's] whole effect is to give to the Federal Judiciary that which now does not belong to it—a jurisdiction that may be constitutionally conferred upon it, I grant, but that has never yet been conferred upon it. It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy. . . . * * * * * ". . . That is the language of this bill. Whether it is the intent or not I know not, but it is the language of the bill; for there is no limitation whatsoever upon the terms that are employed, and they are as comprehensive as can be used." Globe App. 216-217. 18 The governmental immunity at issue in the present case differs significantly from the official immunities involved in our previous decisions. In those cases, various government officers had been sued in their individual capacities, and the immunity served to insulate them from personal liability for damages. Here, in contrast, only the liability of the municipality itself is at issue, not that of its officers, and in the absence of an immunity, any recovery would come from public funds. 19 Primary among the constitutional suits heard in federal court were those based on a municipality's violation of the Contract Clause, and the courts' enforcement efforts often included "various forms of 'positive' relief, such as ordering that taxes be levied and collected to discharge federal-court judgments, once a constitutional infraction was found." Monell v. New York City Dept. of Social Services, supra, 436 U.S., at 681, 98 S.Ct., at 2031. Damages actions against municipalities for federal statutory violations were also entertained. See, e. g., Levy Court v. Coroner, 2 Wall. 501, 17 L.Ed. 851 (1865); Corporation of New York v. Ransom, 23 How. 487, 16 L.Ed. 515 (1860); Bliss v. Brooklyn, 3 F.Cas. 707 (No. 1,544) (CCEDNY 1871). In addition, state constitutions and statutes, as well as municipal charters, imposed many obligations upon the local governments, the violation of which typically gave rise to damages actions against the city. See generally Note, Streets, Change of Grade, Liability of Cities for, 30 Am.St.Rep. 835 (1893), and cases cited therein. With respect to authorized contracts—and even unauthorized contracts that are later ratified by the corporation—municipalities were liable in the same manner as individuals for their breaches. See generally 1 J. Dillon, Law of Municipal Corporations §§ 385, 394 (2d ed. 1873) (hereinafter Dillon). Of particular relevance to the instant case, included within the class of contract actions brought against a city were those for the wrongful discharge of a municipal employee, and where the claim was adjudged meritorious, damages in the nature of backpay were regularly awarded. See, e. g., Richardson v. School Dist. No. 10, 38 Vt. 602 (1866); Paul v. School Dist. No. 2, 28 Vt. 575 (1856); Inhabitants of Searsmont v. Farwell, 3 Me. *450 (1825); see generally F. Burke, A Treatise on the Law of Public Schools 81-85 (1880). The most frequently litigated "breach of contract" suits, however, at least in federal court, were those for failure to pay interest on municipal bonds. See, e. g., The Supervisors v. Durant, 9 Wall. 415, 19 L.Ed. 732 (1870); Commissioners of Knox County v. Aspinwall, 21 How. 539, 16 L.Ed. 208 (1859). 20 See infra, at 644-650. 21 See generally C. Rhyne, Municipal Law 729-789 (1957); Shearman & Redfield §§ 143-152; W. Williams, Liability of Municipal Corporations for Tort (1901) (hereinafter Williams). 22 Accord, Bunker v. City of Hudson, 122 Wis. 43, 54, 99 N.W. 448, 452 (1904); Oklahoma City v. Hill Bros., 6 Okl. 114, 137-139, 50 P. 242, 249-250 (1897); Schussler v. Board of Comm'rs of Hennepin County, 67 Minn. 412, 417, 70 N.W. 6, 7 (1897); McGraw v. Town of Marion, 98 Ky. 673, 680-683, 34 S.W. 18, 20-21 (1896). See generally Note, Liability of Cities for the Negligence and Other Misconduct of their Officers and Agents, 30 Am.St.Rep. 376, 405-411 (1893). Even in England, where the doctrine of official immunity followed by the American courts was first established, no immunity was granted where the damages award was to come from the public treasury. As Baron Bramwell stated in Ruck v. Williams, 3 H. & N. 308, 320, 157 Eng.Rep. 488, 493 (Exch.1858): "I can well understand if a person undertakes the office or duty of a Commissioner, and there are no means of indemnifying him against the consequences of a slip, it is reasonable to hold that he should not be responsible for it. I can also understand that, if one of several Commissioners does something not within the scope of his authority, the Commissioners as a body are not liable. But where Commissioners, who are a quasi corporate body, are not affected [i. e., personally] by the result of an action, inasmuch as they are authorized by act of parliament to raise a fund for payment of the damages, on what principle is it that, if an individual member of the public suffers from an act bona fide but erroneously done, he is not to be compensated? It seems to me inconsistent with actual justice, and not warranted by any principle of law." See generally Shearman & Redfield §§ 133, 178. 23 Senator Stevenson proceeded to read from the decision in Prather v. Lexington, 52 Ky. 559, 560-562 (1852): "Where a particular act, operating injuriously to an individual, is authorized by a municipal corporation, by a delegation of power either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual. But as a general rule a corporation is not responsible for the unauthorized and unlawful acts of its officers, although done under the color of their office; to render it liable it must appear that it expressly authorized the acts to be done by them, or that they were done in pursuance of a general authority to act for the corporation, on the subject to which they relate. (Thayer v. Boston, 19 Pick., 511.) It has also been held that cities are responsible to the same extent, and in the same manner, as natural persons for injuries occasioned by the negligence or unskillfulness of their agents in the construction of works for their benefit." Globe 762. 24 At one point in the debates, Senator Stevenson did protest that the Sherman amendment would, for the first time, "create a corporate liability for personal injury which no prudence or foresight could have prevented." Ibid. As his later remarks made clear, however, Stevenson's objection went only to the novelty of the amendment's creation of vicarious municipal liability for the unlawful acts of private individuals, "even if a municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it." Monell v. New York City Dept. of Social Services, 436 U.S., at 692-693, n. 57, 98 S.Ct., at 2037, n. 57. 25 See, e. g., Globe 365 (remarks of Rep. Arthur) ("But if the Legislature enacts a law, if the Governor enforces it, if the judge upon the bench renders a judgment, if the sheriff levy an execution, execute a writ, serve a summons, or make an arrest, all acting under a solemn, official oath, though as pure in duty as a saint and as immaculate as a seraph, for a mere error in judgment, they are liable. . ."); id., at 385 (remarks of Rep. Lewis); Globe App. 217 (remarks of Sen. Thurman). 26 In actuality, the distinction between a municipality's governmental and proprietary functions is better characterized not as a line, but as a succession of points. In efforts to avoid the often-harsh results occasioned by a literal application of the test, courts frequently created highly artificial and elusive distinctions of their own. The result was that the very same activity might be considered "governmental" in one jurisdiction, and "proprietary" in another. See 18 McQuillin § 53.02, at 105. See also W. Prosser, Law of Torts § 131, p. 979 (4th ed. 1971) (hereinafter Prosser). As this Court stated, in reference to the " 'nongovernmental'-'governmental' quagmire that has long plagued the law of municipal corporations": "A comparative study of the cases in the forty-eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound." Indian Towing Co. v. United States, 350 U.S. 61, 65, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955) (on rehearing). 27 "While acting in their governmental capacity, municipal corporations proper are given the benefit of that same rule which is applied to the sovereign power itself, and are afforded complete immunity from civil responsibility for acts done or omitted, unless such responsibility is expressly created by statute. When, however, they are not acting in the exercise of their purely governmental functions, but are performing duties that pertain to the exercise of those private franchises, powers, and privileges which belong to them for their own corporate benefit, or are dealing with property held by them for their own corporate gain or emolument, then a different rule of liability is applied and they are generally held responsible for injuries arising from their negligent acts or their omissions to the same extent as a private corporation under like circumstances." Williams § 4, at 9. See generally 18 McQuillin §§ 53.02, 53.04, 53.24; Prosser § 131, at 977-983; James, Tort Liability of Governmental Units and Their Officers, 22 U.Chi.L.Rev. 610, 611-612, 622-629 (1955). 28 Although it has never been understood how the doctrine of sovereign immunity came to be adopted in the American democracy, it apparently stems from the personal immunity of the English Monarch as expressed in the maxim, "The King can do no wrong." It has been suggested, however, that the meaning traditionally ascribed to this phrase is an ironic perversion of its original intent: "The maxim merely meant that the King was not privileged to do wrong. If his acts were against the law, they were injuriae (wrongs). Bracton, while ambiguous in his several statements as to the relation between the King and the law, did not intend to convey the idea that he was incapable of committing a legal wrong." Borchard, Government Liability in Tort, 34 Yale L.J. 1, 2, n. 2 (1924). See also Kates & Kouba, Liability of Public Entities Under Section 1983 of the Civil Rights Act, 45 S.Cal.L.Rev. 131, 142 (1972). In this country, "[t]he sovereign or governmental immunity doctrine, holding that the state, its subdivisions and municipal entities, may not be held liable for tortious acts was never completely accepted by the courts, its underlying principle being deemed contrary to the basic concept of the law of torts that liability follows negligence, as well as foreign to the spirit of the constitutional guarantee that every person is entitled to a legal remedy for injuries he may receive in his person or property. As a result, the trend of judicial decisions was always to restrict, rather than to expand, the doctrine of municipal immunity." 18 McQuillin § 53.02, at 104 (footnotes omitted). See also Prosser § 131, at 984 ("For well over a century the immunity of both the state and the local governments for their torts has been subjected to vigorous criticism, which at length has begun to have its effect"). The seminal opinion of the Florida Supreme Court in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (1957), has spawned "a minor avalanche of decisions repudiating municipal immunity," Prosser § 131, at 985, which, in conjunction with legislative abrogation of sovereign immunity, has resulted in the consequence that only a handful of States still cling to the old common-law rule of immunity for governmental functions. See K. Davis, Administrative Law of the Seventies § 25.00 (1976 and Supp.1977) (only two States adhere to the traditional common-law immunity from torts in the exercise of governmental functions); Harley & Wasinger, Government Immunity: Despotic Mantle or Creature of Necessity, 16 Washburn L.J. 12, 34-53 (1976). 29 The common-law immunity for governmental functions is thus more comparable to an absolute immunity from liability for conduct of a certain character, which defeats a suit at the outset, than to a qualified immunity, which "depends upon the circumstances and motivations of [the official's] actions, as established by the evidence at trial." Imbler v. Pachtman, 424 U.S. 409, 419, n. 13, 96 S.Ct. 984, 989, n. 13, 47 L.Ed.2d 128 (1976). 30 Municipal defenses—including an assertion of sovereign immunity—to a federal right of action are, of course, controlled by federal law. See Fitzpatrick v. Bitzer, 427 U.S. 445, 455-456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976); Hampton v. Chicago, 484 F.2d 602, 607 (CA7 1973) (Stevens, J.) ("Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced"). 31 See generally 18 McQuillin § 53.04a; Shearman & Redfield §§ 127-130; Williams § 6, at 15-16. Like the governmental/proprietary distinction, a clear line between the municipality's "discretionary" and "ministerial" functions was often hard to discern, a difficulty which has been mirrored in the federal courts' attempts to draw a similar distinction under the Federal Tort Claims Act, 28 U.S.C. § 2680(a). See generally 3 K. Davis, Administrative Law Treatise § 25.08 (1958 and Supp.1970). 32 Cf. P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 336 (2d ed. 1973) ("[W]here constitutional rights are at stake the courts are properly astute, in construing statutes, to avoid the conclusion that Congress intended to use the privilege of immunity . . . in order to defeat them"). 33 The absence of any damages remedy for violations of all but the most "clearly established" constitutional rights, see Wood v. Strickland, 420 U.S., at 322, 95 S.Ct., at 1000, could also have the deleterious effect of freezing constitutional law in its current state of development, for without a meaningful remedy aggrieved individuals will have little incentive to seek vindication of those constitutional deprivations that have not previously been clearly defined. 34 For example, given the discussion that preceded the Independence City Council's adoption of the allegedly slanderous resolution impugning petitioner's integrity, see n. 6, supra, one must wonder whether this entire litigation would have been necessary had the Council members thought that the city might be liable for their misconduct. 35 Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-418, 95 S.Ct. 2362, 2371-2372, 45 L.Ed.2d 280 (1975): "If employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality. It is the reasonably certain prospect of a backpay award that 'provide[s] the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history.' United States v. N. L. Industries, Inc., 479 F.2d 354, 379 (CA 8 1973)." 36 In addition, the threat of liability against the city ought to increase the attentiveness with which officials at the higher levels of government supervise the conduct of their subordinates. The need to institute system-wide measures in order to increase the vigilance with which otherwise indifferent municipal officials protect citizens' constitutional rights is, of course, particularly acute where the front line officers are judgment-proof in their individual capacities. 37 On at least two previous occasions, this Court has expressly recognized that different considerations come into play when governmental rather than personal liability is threatened. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), affirmed an award of attorney's fees out of state funds for a deprivation of constitutional rights, holding that such an assessment would not contravene the Eleventh Amendment. In response to the suggestion, adopted by the dissent, that any award should be borne by the government officials personally, the Court noted that such an allocation would not only be "manifestly unfair," but would "def[y] this Court's insistence in a related context that imposing personal liability in the absence of bad faith may cause state officers to 'exercise their discretion with undue timidity.' Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214." Id., at 699, n. 32, 98 S.Ct., at 2578, n. 32. The Court thus acknowledged that imposing personal liability on public officials could have an undue chilling effect on the exercise of their decision-making responsibilities, but that no such pernicious consequences were likely to flow from the possibility of a recovery from public funds. Our decision in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), also recognized that the justifications for immunizing officials from personal liability have little force when suit is brought against the governmental entity itself. Petitioners in that case had sought damages under § 1983 from a regional planning agency and the individual members of its governing agency. Relying on Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), the Court concluded that "to the extent the evidence discloses that these individuals were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity from federal damages liability." 440 U.S., at 406, 99 S.Ct., at 1180. At the same time, however, we cautioned: "If the respondents have enacted unconstitutional legislation, there is no reason why relief against TRPA itself should not adequately vindicate petitioners' interests. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611." Id., at 405, n. 29, 99 S.Ct., at 1179, n. 29. 38 Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), mentioned a third justification for extending a qualified immunity to public officials: the fear that the threat of personal liability might deter citizens from holding public office. See id., at 320, 95 S.Ct., at 1000 ("The most capable candidates for school board positions might be deterred from seeking office if heavy burdens upon their private resources from monetary liability were a likely prospect during their tenure"). Such fears are totally unwarranted, of course, once the threat of personal liability is eliminated. 39 Monell v. New York City Dept. of Social Services, indicated that the principle of loss-spreading was an insufficient justification for holding the municipality liable under § 1983 on a respondeat superior theory. 436 U.S., at 693-694, 98 S.Ct., at 2037. Here of course, quite a different situation is presented. Petitioner does not seek to hold the city responsible for the unconstitutional actions of an individual official "solely because it employs a tortfeasor." Id., at 691, 98 S.Ct., at 2036. Rather, liability is predicated on a determination that "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id., at 690, 98 S.Ct., at 2035. In this circumstance—when it is the local government itself that is responsible for the constitutional deprivation—it is perfectly reasonable to distribute the loss to the public as a cost of the administration of government, rather than to let the entire burden fall on the injured individual. 40 "The imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students." Wood v. Strickland, supra, 420 U.S., at 319-320, 95 S.Ct., at 999-1000. 41 Note, Developments in the Law: Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1224 (1977). See also Johnson v. State, 69 Cal.2d 782, 792-793, 73 Cal.Rptr. 240, 247-248, 447 P.2d 352, 359-360 (1968): "Nor do we deem an employee's concern over the potential liability of his employer, the governmental unit, a justification for an expansive definition of 'discretionary,' and hence immune, acts. As a threshold matter, we consider it unlikely that the possibility of government liability will be a serious deterrent to the fearless exercise of judgment by the employee. In any event, however, to the extent that such a deterrent effect takes hold, it may be wholesome. An employee in a private enterprise naturally gives some consideration to the potential liability of his employer, and this attention unquestionably promotes careful work; the potential liability of a governmental entity, to the extent that it affects primary conduct at all, will similarly influence public employees." (Citation and footnote omitted.) 1 Under § 3.3(1) of the Independence City Charter in effect in 1972, the City Manager had the power to "[a]ppoint, and when deemed necessary for the good of the service, lay off, suspend, demote, or remove all directors, or heads, of administrative departments. . . ." Section 3.8 of that Charter stated that the Chief of Police is the "director" of the Police Department. Charter of the City of Independence, Mo. (Dec. 5, 1961) (hereinafter cited as Charter). 2 In its answer to Owen's complaint in this action, the city cited the state-court action as Owen v. Roberts and Alberg, Case No. 778,640 (Jackson County, Mo., Circuit Ct.). App. 15. 3 Owen initially claimed that his property interests in the job also were violated. The Court of Appeals affirmed the District Court's rejection of that contention, 560 F.2d 925, 937 (CA8 1977), and petitioner has not challenged that ruling in this Court. The Court suggests that the city should have presented a cross-petition for certiorari in order to argue that Owen has no cause of action. Ante, at 633, n. 13. It is well settled that a respondent "may make any argument presented below that supports the judgment of the lower court." Hankerson v. North Carolina, 432 U.S. 233, 240, n. 6, 97 S.Ct. 2339, 2344, n. 6, 53 L.Ed.2d 306 (1977); see Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 480-481, 96 S.Ct. 2158, 2159, 48 L.Ed.2d 784 (1976), citing United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 563, 68 L.Ed. 1087 (1924). The judgment of the Court of Appeals in the instant case was to "den[y] Owen any relief . . ." by finding that the defendants were immune from suit. 589 F.2d 335, 338 (1979). Since the same judgment would result from a finding that Owen has no cause of action under the statute, respondents' failure to present a cross-petition does not prevent them from pressing the issue before this Court. 4 The City charter prohibits any involvement of Council members in the City Manager's personnel decisions. Section 2.11 of the Charter states that Council members may not "participate in any manner in the appointment or removal of officers and employees of the city." Violation of § 2.11 is a misdemeanor that may be punished by ejection from office. 5 The Court suggests somewhat cryptically that stigma was imposed on Owen when "the city—through the unanimous resolution of the City Council—released to the public an allegedly false statement impugning petitioner's honesty and integrity." Ante, at 633, n. 13. The Court fails, however, to identify any "allegedly false statements." The resolution did call for public disclosure of the reports on the property room situation, but those reports were never released. Ante, at 630. Indeed, petitioner's complaint alleged that the failure to release those reports left "a cloud or suspicion of misconduct" over him. App. 8. The resolution also referred the reports to the prosecutor and called on the City Manager to take appropriate action. Neither event could constitute the public release of an "allegedly false statement" mentioned by the Court. 6 Roberts himself enjoyed absolute immunity from § 1983 suits for acts taken in his legislative capacity. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 402-406, 99 S.Ct. 1171, 1178-1180, 59 L.Ed.2d 401 (1979). Owen did sue him in state court for libel and slander, and reached an out-of-court settlement. See supra, at 660-661. 7 This case bears some resemblance to Martinez v. California, 444 U.S. 227, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) which involved a § 1983 suit against state parole officials for injuries caused by a paroled prisoner. We found that the plaintiffs had no cause of action because they could not show a causal relationship between their injuries and the actions of the defendants. 444 U.S., at 285, 100 S.Ct., at 559. That relationship also is absent in this case. Any injury to Owen's reputation was the result of the Roberts statement, not the policies of the city of Independence. 8 "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . . " 42 U.S.C. § 1983. 9 The Court's argument is not only unpersuasive, but also is internally inconsistent. The Court contends that strict liability is necessary to "create an incentive for officials . . . to err on the side of protecting citizens' constitutional rights." Ante, at 651-652. Yet the Court later assures us that such liability will not distort municipal decisionmaking because "[t]he inhibiting effect is significantly reduced, if not eliminated . . . when the threat of personal liability is removed." Ante, at 656. Thus, the Court apparently believes that strict municipal liability is needed to modify public policies, but will not have any impact on those policies anyway. 10 The Court implies that unless municipalities are strictly liable under § 1983, constitutional law could be frozen "in its current state of development." Ante, at 651, n. 33. I find this a curious notion. This could be the first time that the period between 1961, when Monroe declared local governments absolutely immune from § 1983 suits, and 1978, when Monell overruled Monroe, has been described as one of static constitutional standards. 11 For example, in a recent case in Alaska, a jury awarded almost $500,000 to a policeman who was accused of "racism and brutality" and removed from duty without notice and an opportunity to be heard. Wayson v. City of Fairbanks, 22 ATLA L.Rep. 222 (Alaska Fourth Dist.Super.Ct. 1979). 12 Ironically, the State and Federal Governments cannot be held liable for constitutional deprivations. The Federal Government has not waived its sovereign immunity against such claims, and the States are protected by the Eleventh Amendment. 13 Cong.Globe, 42d Cong., 1st Sess., 663 (1871). The proposal applied to any property damage or personal injury caused "by any persons riotously and tumultuously assembled together; and if such offense was committed to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude. . . ." As revised by the first Conference Committee on the Civil Rights Act, the provision still required no showing of notice. Id., at 749. 14 The final Conference amendment stated: "That any person or persons having knowledge that any of the wrongs . . . mentioned in the second section of this act, are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse to do so, and such wrongful act shall be committed, such person or persons shall be liable to the person injured or his legal representatives for all damages caused by any such wrongful act. . . ." Id., at 819. 15 Under 42 U.S.C. § 1986, the current version of the language approved in place of the Sherman amendment, liability "is dependent on proof of actual knowledge by a defendant of the wrongful conduct. . . . " Hampton v. Chicago, 484 F.2d 602, 610 (CA7 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). 16 In the leading case of Bailey v. Mayor &c. of the City of New York, 3 Hill 531, 539 (N.Y.1842), the court distinguished between municipal powers "conferred for the benefit of the public" and those "made as well for the private emolument and advantage of the city. . . ." Because the injury in Bailey was caused by a water utility maintained for the exclusive benefit of the residents of New York City, the court found the municipality liable "as a private company." Ibid. This distinction was construed to provide local governments with immunity in actions alleging inadequate police protection, Western College of Homeopathic Medicine v. Cleveland, 12 Ohio St. 375 (1861), improper sewer construction, Child v. Boston, 86 Mass. 41 (1862), negligent highway maintenance, Hewison v. New Haven, 37 Conn. 475 (1871), and unsafe school buildings, Hill v. Boston, 122 Mass. 344 (1877). 17 E. g., Goodrich v. Chicago, 20 Ill. 445 (1858); Logansport v. Wright, 25 Ind. 512 (1865); Mills v. Brooklyn, 32 N.Y. 489, 498-499 (1865); Wilson v. Mayor &c. of City of New York, 1 Denio 595, 600-601 (N.Y.1845); Wheeler v. Cincinnati, 19 Ohio St. 19 (1869) (per curiam ); Richmond v. Long's Adm'rs, 17 Gratt. 375 (Va.1867); Kelley v. Milwaukee, 18 Wis. 83 (1864). 18 The Court cannot wish away these extensive municipal immunities. It quotes two 19th-century treatises as referring to municipal liability for some torts. Ante, at 640. Both passages, however, refer to exceptions to the existing immunity rules. The first treatise cited by the Court concedes, though deplores, the fact that many jurisdictions embraced the governmental/proprietary distinction. T. Shearman & A. Redfield, A Treatise on the Law of Negligence § 120, pp. 140-141 (1869). The same volume notes that local governments could not be sued for injury caused by discretionary acts, id., § 127, at 154, or for officers' acts beyond the powers of the municipal corporation, id., § 140, at 169. The Court's quotation from Dillon on Municipal Corporations stops just before that writer acknowledges that local governments are liable only for injury caused by nondiscretionary acts involving "corporate duties." 2 J. Dillon, Law of Municipal Corporations § 764, p. 875 (2d ed. 1873). That writer's full statement of municipal tort liability recognizes immunity for both governmental and discretionary acts. Dillon observes that municipal corporations may be held liable only "where a duty is a corporate one, that is, one which rests upon the municipality in respect of its special or local interests, and not as a public agency, and is absolute and perfect, and not discretionary or judicial in its nature. . . ." Id., § 778, at 891 (emphasis in original). The Court takes some solace in the absence in the 19th century of a qualified immunity for local governments. Ante, at 644-650. That absence, of course, was due to the availability of absolute immunity for governmental and discretionary acts. There is no justification for discovering strict municipal liability in § 1983 when that statute was enacted against a background of extensive municipal immunity. The Court also points out that municipalities were subject to suit for some statutory violations and neglect of contractual obligations imposed by State or Federal Constitutions. Ante, at 639-640. That amenability to suit is simply irrelevant to the immunity available in tort actions, which controls the immunity available under § 1983. 19 The Court cites eight cases decided before 1871 as "reiterat[ing]" the principle announced in Thayer while awarding damages against municipalities for good-faith torts. Three of those cases involved the "special and peculiar" statutory liability of New England towns for highway maintenance, and are wholly irrelevant to the Court's argument. Billings v. Worcester, 102 Mass. 329, 332-333 (1869); Horton v. Inhabitants of Ipswich, 66 Mass. 488, 491 (1853) (trial court "read to the jury the provisions of the statutes prescribing the duties of towns to keep roads safe . . . and giving a remedy for injuries received from defects in highways"); Elliot v. Concord, 27 N.H. 204 (1853) (citing similar statute); see 2 J. Dillon, Law of Municipal Corporations, § 1000, pp. 1013-1015, and n. 2 (3d ed. 1881). A fourth case, Town Council of Akron v. McComb, 18 Ohio 229 (1849), concerned damages caused by street-grading, and was later expressly restricted to those facts. Western College of Homeopathic Medicine v. Cleveland, 12 Ohio St., at 378-379. Two of the other cases cited by the Court involved the performance of ministerial acts that were widely recognized as giving rise to municipal liability. Lee v. Village of Sandy Hill, 40 N.Y. 442, 451 (1869) (liability for damage caused by street-opening when city was under a "duty" to open that street); Hurley v. Town of Texas, 20 Wis. 634 (1866) (improper tax collection). The seventh case presented malfeasance, or bad-faith acts, by the municipality's agents. Hawks v. Inhabitants of Charlemont, 107 Mass. 414 (1871) (city took material from plaintiff's land to repair bridge). Thus, despite any discussion of Thayer in the court opinions, seven of the eight decisions noted by the Court involved thoroughly unremarkable exceptions to municipal immunity as provided by statute or common law. They do not buttress the Court's theory of strict liability. The Court also notes that Senator Stevenson mentioned Thayer during the debates on the Sherman amendment. Ante, at 642, and nn. 23, 24. That reference, however, came during a speech denouncing the Sherman amendment for imposing tort liability on municipal corporations. To reinforce his contention, Senator Stevenson read from the decision in Prather v. Lexington, 52 Ky. 559, 560-652 (1852), which cited Thayer for the general proposition that a municipal corporation is not liable on a respondeat superior basis for the unauthorized acts of its officers. Cong.Globe, 42d Cong., 1st Sess., 762 (1871). But the point of the passage in Prather read by Senator Stevenson—and the holding of that case—was that "no principle of law . . . subjects a municipal corporation to a responsibility for the safety of the property within its territorial limits." Cong.Globe, supra, quoting Prather, supra, at 561. So Stevenson cited Prather to demonstrate that municipalities should not be held vicariously liable for injuries caused within their boundaries. Prather, in turn, cited Thayer for a subsidiary point. Nowhere in this sequence is there any support for the Court's idea that local governments should be subjected to strict liability under § 1983. 20 Idaho Code § 6-904(1) (1979); Ill.Rev.Stat., ch. 85, §§ 2-103, 2-109, 2-201, 2-203 (1977); Ind.Code §§ 34-4-16.5-3(6), (8) (1976); 1979 Kan.Sess.Laws, ch. 186, § 4 (including specific exceptions to immunity); Mass.Gen.Laws Ann., ch. 258, §§ 10(a), (b) (West Supp.1979); Minn.Stat. §§ 466.03(5), (6) (1978); Mont.Code Ann. §§ 2-9-111, 2-9-112 (1979); Neb.Rev.Stat. §§ 23-2409(1), (2) (1977); Nev.Rev.Stat. § 41.032 (1977); N.D.Cent.Code § 32-12.1-03(3) (Supp.1979); Okla.Stat. Tit. 51, §§ 155(1)-(5) (Supp.1979); Ore.Rev.Stat. §§ 30.265(3)(c), (f) (1979). The Federal Tort Claims Act provides a similar exemption for damages suits against the Federal Government. 28 U.S.C. § 2680(a). The goal of that provision, according to this Court, is to protect the "discretion of the executive or the administrator to act according to one's judgment of the best course . . . ." Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 967, 97 L.Ed. 1427 (1953). 21 Mayor and City Council of Baltimore v. Seidel, 44 Md.App. 465, 409 A.2d 747 (1980); Mich.Comp.Laws § 691.1407 (1970); Parks v. Long Beach, 372 So.2d 253, 253-254 (Miss.1979); Haas v. Hayslip, 51 Ohio St.2d 135, 139, 364 N.E.2d 1376, 1379 (1977); Virginia Electric & Power Co. v. Hampton Redevelopment & Housing Authority, 217 Va. 30, 34, 225 S.E.2d 364, 368 (1976). 22 Ark.Stat.Ann. § 12-2901 (1979); Shaw v. Mission, 88 S.D. 564, 225 N.W.2d 593 (1975). 23 1977 N.M.Laws, ch. 386, §§ 4-9; Pa.Stat.Ann., Tit. 53, § 5311.202(b) (Purdon Supp.1979); Wright v. North Charleston, 271 S.C. 515, 516-518, 248 S.E.2d 480, 481-482 (1978), see S.C.Code §§ 5-7-70, 15-77-230 (1976 and Supp.1979); 1979 Wyo.Sess.Laws, ch. 157, § 1 (to be codified as Wyo.Stat. §§ 1-39-105 to 112). 24 Iowa Code § 613A.4(3) (1979). 25 Cal.Gov't Code Ann. §§ 815.2, 820.2 (West 1966); Tango v. New Haven, 173 Conn. 203, 204-205, 377 A.2d 284, 285 (1977); Biloon's Electrical Serv., Inc. v. Wilmington, 401 A.2d 636, 639-640, 643 (Del.Super.1979); Spencer v. General Hospital of the District of Columbia, 138 U.S.App.D.C. 48, 53, 425 F.2d 479, 484 (1969) (en banc); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1020 (Fla.1979); Ga.Code § 69-302 (1978); Frankfort Variety, Inc. v. Frankfort, 552 S.W.2d 653 (Ky.1977); Me.Rev.Stat.Ann., Tit. 14, § 8103(2)(C) (Supp.1965-1979); Merrill v. City of Manchester, 114 N.H. 722, 729, 332 A.2d 378, 383 (1974); N.J.Stat.Ann. §§ 59:2-2(b) and 59:2-3 (West Supp.1979-1980); Weiss v. Fote, 7 N.Y.2d 579, 585-586, 200 N.Y.S.2d 409, 412-413, 167 N.E.2d 63, 65-66 (1960); Calhoun v. Providence, 390 A.2d 350, 355-356 (R.I.1978); Tenn.Code Ann. § 23-3311(1) (Supp.1979); Tex.Rev.Civ.Stat.Ann., Art. 6252-19, § 14(7) (Vernon 1970); Utah Code Ann. § 63-30-10(1) (1953); King v. Seattle, 84 Wash.2d 239, 246, 525 P.2d 228, 233 (1974) (en banc); Wis.Stat. § 895.43(3) (1977). 26 Colo.Rev.Stat. § 24-10-104 (1973); Mo.Rev.Stat.Ann. § 71.185 (1978); N.C.Gen.Stat. § 160A-485 (1976); Vt.Stat.Ann., Tit. 29, § 1403 (1970). 27 Ala.Code, 11-47-190 (1975); State v. Jennings, 555 P.2d 251 (Alaska 1976); Ariz.Rev.Stat.Ann. § 11-981(A)(2) (Supp.1979-1980); La.Const., Art. 12, § 10(A); Long v. Weirton, 214 S.E.2d 832, 859 (W.Va.1975). It is difficult to determine precisely the tort liability rules for local governments in Hawaii.

12

445 U.S. 684 100 S.Ct. 1432 63 L.Ed.2d 715 Thomas W. WHALEN, Petitioner,v.UNITED STATES. No. 78-5471. Argued Nov. 27, 28, 1979. Decided April 16, 1980. Syllabus Petitioner was convicted under the District of Columbia Code of the separate statutory offenses of rape and killing the same victim in the perpetration of the rape. Under the Code, the latter offense is a species of first-degree murder, but the statute, although requiring proof of a killing and of the commission or attempted commission of rape, does not require proof of an intent to kill. Petitioner was sentenced to consecutive terms of imprisonment of 20 years to life for first-degree murder and of 15 years to life for rape. The District of Columbia Court of Appeals affirmed the convictions and sentences, rejecting petitioner's contention that his sentence for rape was improper because that offense merged for purposes of punishment with the felony-murder offense, and thus that the imposition of cumulative punishments for the two offenses was contrary to the federal statutes and to the Double Jeopardy Clause of the Fifth Amendment. Held: The Court of Appeals was mistaken in believing that Congress authorized consecutive sentences in the circumstances of this case, and that error denied petitioner his right to be deprived of liberty as punishment for criminal conduct only to the extent authorized by Congress. Pp. 686-695. (a) The customary deference ordinarily afforded by this Court to the District of Columbia Court of Appeals' construction of local federal legislation is inappropriate with respect to the statutes involved in this case, because petitioner's claim under the Double Jeopardy Clause, which protects against multiple punishments for the same offense, cannot be separated entirely from a resolution of the question of statutory construction. If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty. Pp. 688-690. (b) Neither of the provisions of the District of Columbia Code specifying the separate offenses involved here indicates whether Congress authorized consecutive sentences where both statutes have been offended in a single criminal episode. However, another Code section, when construed in light of its history and its evident purpose, indicates that multiple punishments cannot be imposed for two offenses arising out of the same criminal transaction unless each offense "requires proof of a fact which the other does not." The statute embodies in this respect the rule of statutory construction stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, and, in this case, leads to the conclusion that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape, since it is plainly not the case that each provision "requires proof of a fact which the other does not." A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape. Pp. 690-695. 379 A.2d 1152, reversed and remanded. Andrew L. Frey, Dept. of Justice, Washington, D. C., for respondent. Silas J. Wasserstrom, Washington, D. C., for petitioner. Mr. Justice STEWART delivered the opinion of the Court. 1 After a jury trial, the petitioner was convicted in the Superior Court of the District of Columbia of rape, and of killing the same victim in the perpetration of rape. He was sentenced to consecutive terms of imprisonment of 20 years to life for first-degree murder, and of 15 years to life for rape. The District of Columbia Court of Appeals affirmed the convictions and the sentences. 379 A.2d 1152.1 We brought the case here to consider the contention that the imposition of cumulative punishments for the two offenses was contrary to federal statutory and constitutional law. 441 U.S. 904, 99 S.Ct. 1991, 60 L.Ed.2d 372. 2 * Under the laws enacted by Congress for the governance of the District of Columbia, rape and killing a human being in the course of any of six specified felonies, including rape, are separate statutory offenses. The latter is a species of first-degree murder, but, as is typical of such "felony murder" offenses, the statute does not require proof of an intent to kill. D.C.Code § 22-2401 (1973). It does require proof of a killing and of the commission or attempted commission of rape or of one of five other specified felonies, in the course of which the killing occurred. Ibid. A conviction of first-degree murder is punishable in the District of Columbia by imprisonment for a term of 20 years to life. § 22-2404.2 Forcible rape of a female is punishable by imprisonment for any term of years or for life. § 22-2801. 3 It is the petitioner's position that his sentence for the offense of rape must be vacated because that offense merged for purposes of punishment with the felony-murder offense, just as, for example, simple assault is ordinarily held to merge into the offense of assault with a dangerous weapon. See Waller v. United States, 389 A.2d 801, 808 (D.C.1978). The District of Columbia Court of Appeals disagreed, finding that "the societal interests which Congress sought to protect by enactment [of the two statutes] are separate and distinct," and that "nothing in th[e] legislation . . . suggest[s] that Congress intended" the two offenses to merge. 379 A.2d, at 1159. That construction of the legislation, the petitioner argues, is mistaken, and he further argues that, so construed, the pertinent statutes impose on him multiple punishments for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment. Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. 4 If this case had come here from a United States court of appeals, we would as a matter of course first decide the petitioner's statutory claim, and, only if that claim were rejected, would we reach the constitutional issue. See Simpson v. United States, 435 U.S. 6, 11-12, 98 S.Ct. 909, 912-13, 55 L.Ed.2d 70. But this case comes from the District of Columbia Court of Appeals, and the statutes in controversy are Acts of Congress applicable only within the District of Columbia. In such cases it has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern. See Pernell v. Southall Realty, 416 U.S. 363, 366, 94 S.Ct. 1723, 1725, 40 L.Ed.2d 198; see also Griffin v. United States, 336 U.S. 704, 717-718, 69 S.Ct. 814, 820, 93 L.Ed. 993; Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 1324, 90 L.Ed. 1382. This practice has stemmed from the fact that Congress, in creating the courts of the District of Columbia and prescribing their jurisdiction, "contemplate[d] that the decisions of the District of Columbia Court of Appeals on matters of local law—both common law and statutory law—will be treated by this Court in a manner similar to the way in which we treat decisions of the highest court of a State on questions of state law." Pernell v. Southall Realty, 416 U.S., at 368, 94 S.Ct., at 1726 (footnote omitted). 5 But it is clear that the approach described in the Pernell opinion is a matter of judicial policy, not a matter of judicial power. Acts of Congress affecting only the District, like other federal laws, certainly come within this Court's Art. III jurisdiction, and thus we are not prevented from reviewing the decisions of the District of Columbia Court of Appeals interpreting those Acts in the same jurisdictional sense that we are barred from reviewing a state court's interpretation of a state statute. Ibid. Cf. Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886, 44 L.Ed.2d 508; Scripto, Inc. v. Carson, 362 U.S. 207, 210, 80 S.Ct. 619, 621, 4 L.Ed.2d 660; Murdock v. Memphis, 20 Wall. 590, 632-633, 22 L.Ed. 429. 6 In this case we have concluded that the customary deference to the District of Columbia Court of Appeals' construction of local federal legislation is inappropriate with respect to the statutes involved for the reason that the petitioner's claim under the Double Jeopardy Clause cannot be separated entirely from a resolution of the question of statutory construction. The Fifth Amendment guarantee against double jeopardy protects not only against a second trial for the same offense, but also "against multiple punishments for the same offense," North Carolina v. Pearce, supra, at 717, 89 S.Ct., at 2076 (footnote omitted). But the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized. See Gore v. United States, 357 U.S. 386, 390, 78 S.Ct. 1280, 1283, 2 L.Ed.2d 1405; id., at 394, 78 S.Ct., at 1285 (Warren, C. J., dissenting on statutory grounds); Bell v. United States, 349 U.S. 81, 82, 75 S.Ct. 620, 621, 99 L.Ed. 905; Ex parte Lange, 18 Wall. 163, 176, 21 L.Ed. 872; see also Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187; United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151. 7 It is not at all uncommon, for example, for Congress or a state legislature to provide that a single criminal offense may be punished both by a monetary fine and by a term of imprisonment. In that situation, it could not be seriously argued that the imposition of both a fine and a prison sentence in accordance with such a provision constituted an impermissible punishment. But if a penal statute instead provided for a fine or a term of imprisonment upon conviction, a court could not impose both punishments without running afoul of the double jeopardy guarantee of the Constitution. See Ex parte Lange, supra, at 176, 21 L.Ed. 872. Cf. Bozza v. United States, 330 U.S. 160, 167, 67 S.Ct. 645, 649, 91 L.Ed. 818. In the present case, therefore, if Congress has not authorized cumulative punishments for rape and for an unintentional killing committed in the course of the rape, contrary to what the Court of Appeals believed, the petitioner has been impermissibly sentenced. The dispositive question, therefore, is whether Congress did so provide. 8 The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so. The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress. See United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37; United States v. Hudson & Goodwin, 7 Cranch 32, 34, 3 L.Ed. 259.3 If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty.4 9 Because we have concluded that the District of Columbia Court of Appeals was mistaken in believing that Congress authorized consecutive sentences in the circumstances of this case, and because that error denied the petitioner his constitutional right to be deprived of liberty as punishment for criminal conduct only to the extent authorized by Congress, we reverse the judgment of the Court of Appeals. II 10 As has already been noted, rape and the killing of a person in the course of rape in the District of Columbia are separate statutory offenses for which punishments are separately provided. Neither statute, however, indicates whether Congress authorized consecutive sentences where both statutes have been offended in a single criminal episode. Moreover, the legislative history of those specific penal provisions sheds no light on that question.5 The issue is resolved, however, by another statute, enacted in 1970. That statute is § 23-112 of the District of Columbia Code (1973), and it provides as follows: 11 "A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not." (Emphasis added.) 12 Although the phrasing of the statute is less than felicitous, the message of the italicized clause, we think, is that multiple punishments cannot be imposed for two offenses arising out of the same criminal transaction unless each offense "requires proof of a fact which the other does not." The clause refers, of course, to a rule of statutory construction stated by this Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, and consistently relied on ever since to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively.6 The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the "same offense," they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent. In the Blockburger case the Court held that "[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Id., at 304, 52 S.Ct., at 182. See also Brown v. Ohio, 432 U.S., at 166, 97 S.Ct., at 2225; Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616; Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405. 13 The legislative history rather clearly confirms that Congress intended the federal courts to adhere strictly to the Blockburger test when construing the penal provisions of the District of Columbia Code. The House Committee Report expressly disapproved several decisions of the United States Court of Appeals for the District of Columbia Circuit that had not allowed consecutive sentences notwithstanding the fact that the offenses were different under the Blockburger test. See H.R.Rep.No.91-907, p. 114 (1970). The Report restated the general principle that "whether or not consecutive sentences may be imposed depends on the intent of Congress." Ibid. But "[s]ince Congress in enacting legislation rarely specifies its intent on this matter, the courts have long adhered to the rule that Congress did intend to permit consecutive sentences . . . when each offense " 'requires proof of a fact which the other does not,' " ibid., citing Blockburger v. United States, supra, and Gore v. United States, supra. The Com mittee Report observed that the United States Court of Appeals had "retreated from this settled principle of law" by requiring specific evidence of congressional intent to allow cumulative punishments, H.R.Rep.No.91-907, at 114, and the Report concluded as follows: 14 "To obviate the need for the courts to search for legislative intent, section 23-112 clearly states the rule for sentencing on offenses arising from the same transaction. For example, a person convicted of entering a house with intent to steal and stealing therefrom shall be sentenced consecutively on the crimes of burglary and larceny unless the judge provides to the contrary." 15 We think that the only correct way to read § 23-112, in the light of its history and its evident purpose, is to read it as embodying the Blockburger rule for construing the penal provisions of the District of Columbia Code. Accordingly, where two statutory offenses are not the same under the Blockburger test, the sentences imposed "shall, unless the court expressly provides otherwise, run consecutively."7 And where the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress. 16 In this case, resort to the Blockburger rule leads to the conclusion that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape, since it is plainly not the case that "each provision requires proof of a fact which the other does not." A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape. See United States v. Greene, 160 U.S.App.D.C. 21, 34, 489 F.2d 1145, 1158 (1973). Cf. Harris v. Oklahoma, 433 U.S. 682, 682-683, 97 S.Ct. 2912, 2912-13, 53 L.Ed.2d 1054. The Government contends that felony murder and rape are not the "same" offense under Blockburger, since the former offense does not in all cases require proof of a rape; that is, D.C.Code § 22-2401 (1973) proscribes the killing of another person in the course of committing rape or robbery or kidnaping or arson, etc. Where the offense to be proved does not include proof of a rape—for example, where the offense is a killing in the perpetration of a robbery—the offense is of course different from the offense of rape, and the Government is correct in believing that cumulative punishments for the felony murder and for a rape would be permitted under Blockburger. In the present case, however, proof of rape is a necessary element of proof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in which one criminal offense requires proof of every element of another offense. There would be no question in this regard if Congress, instead of listing the six lesser included offenses in the alternative, had separately proscribed the six different species of felony murder under six statutory provisions. It is doubtful that Congress could have imagined that so formal a difference in drafting had any practical significance, and we ascribe none to it.8 To the extent that the Government's argument persuades us that the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity. See Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 914, 55 L.Ed.2d 70; see also n. 10, infra. Congress is clearly free to fashion exceptions to the rule it chose to enact in § 23-112. A court, just as clearly, is not. Accordingly, notwithstanding the arguments advanced by the Government in favor of imposing consecutive sentences for felony murder and for the underlying felony, we do not speculate about whether Congress, had it considered the matter, might have agreed.9 It is sufficient for present purposes to observe that a congressional intention to change the general rule of § 23-112 for the circumstances here presented nowhere clearly appears. It would seriously offend the principle of the separation of governmental powers embodied in the Double Jeopardy Clause of the Fifth Amendment if this Court were to fashion a contrary rule with no more to go on than this case provides.10 17 For the foregoing reasons, the judgment of the District of Columbia Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. 18 It is so ordered. 19 Mr. Justice WHITE, concurring in part and concurring in the judgment. 20 Because the District of Columbia Court of Appeals did not take account of § 23-112 of the District of Columbia Code, this is one of those exceptional cases in which the judgment of that court is not entitled to the usual deference. Pernell v. Southall Realty, 416 U.S. 363, 369, 94 S.Ct. 1723, 1726, 40 L.Ed.2d 198 (1974). This conclusion, in my opinion, need not rest on any constitutional considerations. 21 I agree for the reasons given by the Court that in light of § 23-112 and its legislative history, the court below erred in holding that Congress intended to authorize cumulative punishments in this case. But as I see it, the question is one of statutory construction and does not implicate the Double Jeopardy Clause. Had Congress authorized cumulative punishments, as the District of Columbia Court of Appeals held in this case, imposition of such sentences would not violate the Constitution. I agree with Mr. Justice BLACKMUN and Mr. Justice REHNQUIST in this respect. 22 Mr. Justice BLACKMUN, concurring in the judgment. 23 I join the judgment of the Court and much of its opinion. I write separately primarily to state my understanding of the effect, or what should be the effect, of the Court's holding on general double jeopardy principles. 24 (1) I agree with the Court that it would be inappropriate in this case to accord complete deference to the District of Columbia Court of Appeals' construction of the local legislation at issue. In addition to the reasons offered in the Court's opinion, ante, at 688-689, I would point out that the conclusions of the Court of Appeals concerning the intent of Congress in enacting the felony-murder statute were unsupported by appropriate references to the legislative history. Moreover, that court ignored the effect of § 23-112 of the District of Columbia Code, which I have concluded is dispositive of this case. I view the case, therefore, as one falling within the class of " 'exceptional situations where egregious error has been committed.' " Pernell v. Southall Realty, 416 U.S. 363, 369, 94 S.Ct. 1723, 1726, 40 L.Ed.2d 198 (1974), quoting from Griffin v. United States, 336 U.S. 704, 718, 69 S.Ct. 814, 820, 93 L.Ed. 993 (1949), and Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 1324, 90 L.Ed. 1382 (1946). Where such an error has been committed, this Court is barred neither by Art. III nor past practice from overruling the courts of the District of Columbia on a question of local law. Pernell, 416 U.S., at 365-369, 94 S.Ct., at 1724-1726. 25 (2) I agree with the Court that "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." Ante, at 688. I read the opinions cited by the Court in support of that proposition, however, as pronouncing a broader and more significant principle of double jeopardy law. The only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended. It serves, in my considered view, nothing more. "Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).1 26 Dicta in recent opinions of this Court at least have suggested, and I now think wrongly, that the Double Jeopardy Clause may prevent the imposition of cumulative punishments in situations in which the Legislative Branch clearly intended that multiple penalties be imposed for a single criminal transaction. See Simpson v. United States, 435 U.S. 6, 11-13, 98 S.Ct. 909, 912-913, 55 L.Ed.2d 70 (1978); Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168 (1977) (plurality opinion). I believe that the Court should take the opportunity presented by this case to repudiate those dicta squarely, and to hold clearly that the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. I must concede that the dicta that seemingly support a contrary view have caused confusion among state courts that have attempted to decipher our pronouncements concerning the Double Jeopardy Clause's role in the area of multiple punishments.2 27 (3) Finally, I agree with the Court that § 23-112 expresses Congress' intent not to authorize the imposition of consecutive sentences in cases in which the two offenses involved do not each require proof of a fact that the other does not. Ante, at 690-693. The question then remains whether the crimes of rape and felony murder based upon that rape each require proof of a fact that the other does not. I would agree that they do not, and for the reasons stated by the Court, ante, at 693-694. I hasten to observe, however, that this result turns on a determination of Congress' intent. The Court's holding today surely does not require that the same result automatically be reached in a State where the legislature enacts criminal sanctions clearly authorizing cumulative sentences for a defendant convicted on charges of felony murder and the underlying predicate felony. Nor does this Court's per curiam opinion in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), holding that successive prosecutions for felony murder and the underlying predicate felony are constitutionally impermissible, require the States to reach an analogous result in a multiple punishments case. Unfortunately, the rather obvious holding in Harris and the dictum in Simpson have combined to spawn disorder among state appellate courts reviewing challenges similar to the one presented here.3 I would hope that today's holding will remedy, rather than exacerbate, the existing confusion. 28 Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. 29 Historians have traced the origins of our constitutional guarantee against double jeopardy back to the days of Demosthenes, who stated that "the laws forbid the same man to be tried twice on the same issue. . . ." 1 Demosthenes 589 (J Vince trans., 4th ed. 1970). Despite its roots in antiquity, however, this guarantee seems both one of the least understood and, in recent years, one of the most frequently litigated provisions of the Bill of Rights. This Court has done little to alleviate the confusion, and our opinions, including ones authored by me, are replete with mea culpa's occasioned by shifts in assumptions and emphasis. Compare, e. g., United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), with United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (overruling Jenkins ). See alsoBurks v. United States, 437 U.S. 1, 9, 98 S.Ct. 2141, 2146, 57 L.Ed.2d 1 (1978) (Our holdings on this subject "can hardly be characterized as models of consistency and clarity"). Although today's decision takes a tentative step toward recognizing what I believe to be the proper role for this Court in determining the permissibility of multiple punishments, it ultimately compounds the confusion that has plagued us in the double jeopardy area. 30 * In recent years we have stated in the manner of "black letter law" that the Double Jeopardy Clause serves three primary purposes. First, it protects against a second prosecution for the same offense after an acquittal. Second, it protects against a second prosecution for the same offense after a conviction. Third, it protects against multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). See also ante, at 688 (opinion of the Court). Obviously, the scope of each of these three protections turns upon the meaning of the words "same offense," a phrase deceptively simple in appearance but virtually kaleidoscopic in application. Indeed, we have indicated on at least one prior occasion that the meaning of this phrase may vary from context to context, so that two charges considered the same offense so as to preclude prosecution on one charge after an acquittal or conviction on the other need not be considered the same offense so as to bar separate punishments for each charge at a single proceeding. See Brown v. Ohio, supra, at 166-167, n. 6, 97 S.Ct., at 2225-2226. 31 In the present case we are asked to decide whether the Double Jeopardy Clause bars the imposition of separate punishments for the crimes of rape and felony murder based on rape. Because the sentences challenged by petitioner were imposed at a single criminal proceeding, this case obviously is not controlled by precedents developed in the context of successive prosecutions. Thus, the Court rightly eschews reliance upon Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), where we concluded that the crimes of robbery and felony murder predicated on that robbery were similar enough to prevent the State of Oklahoma from prosecuting a person for the former offense after convicting him of the latter offense. See ante, at 694 (opinion of the Court). See also ante, at 698-699 (BLACKMUN, J., concurring in judgment). 32 Having determined that this case turns on the permissibility of "multiple punishments" imposed at a single criminal proceeding, the Court takes a tentative step in what I believe to be the right direction by indicating that the "dispositive question" here is whether Congress intended to authorize separate punishments for the two crimes. Ante, at 689 (opinion of the Court). As Mr. Justice BLACKMUN notes in his concurrence, this Court has not always been so forthright in recognizing that Congress could, if it so desired, authorize cumulative punishments for violation of two separate statutes, whether or not those statutes defined "separate offenses" in some abstract sense. See ante, at 698. While we have hinted at this proposition in prior opinions, see, e. g., Brown v. Ohio, supra, at 165, 97 S.Ct., at 2225; Gore v. United States, 357 U.S. 386, 394, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958) (Warren, C. J., dissenting), we have just as often hedged our bets with veiled hints that a legislature might offend the Double Jeopardy Clause by authorizing too many separate punishments for any single "act." See, e. g., Simpson v. United States, 435 U.S. 6, 11-12, 98 S.Ct. 909, 912-913, 55 L.Ed.2d 70 (1978); Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43 (1978); Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168 (1977) (plurality opinion). To the extent that this latter thesis assumes that any particular criminal transaction is made up of a determinable number of constitutional atoms that the legislature cannot further subdivide into separate offenses, "it demands more of the Double Jeopardy Clause than it is capable of supplying." Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 S.Ct.Rev. 81, 113. See also Note, Twice in Jeopardy, 75 Yale L.J. 262, 311-313 (1965). 33 Having come thus far with the Court and the concurrence, I here part company, for it seems clear to me that, if the only question confronting this Court is whether Congress intended to authorize cumulative punishments for rape and for felony murder based upon rape, this Court need decide no constitutional question whatsoever. Axiomatically, we are obligated to avoid constitutional rulings where a statutory ruling would suffice. See Hagans v. Lavine, 415 U.S. 528, 549, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577 (1974); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Thus, to the extent that the trial court exceeded its legislative authorization in sentencing petitioner to consecutive sentences for rape and felony murder where Congress intended the offenses to merge, our holding should rest solely on our interpretation of the relevant statutes rather than on vague references to "the principle of the separation of governmental powers embodied in the Double Jeopardy Clause of the Fifth Amendment . . . ." Ante, at 695 (opinion of the Court). 34 Like many of the false trails we have followed in this area, the Court's confusion of statutory and constitutional inquiries is not without precedent. Brown v. Ohio, contains dictum to the effect that, "[w]here consecutive sentences are imposed at a single criminal trial," the Double Jeopardy Clause prevents the sentencing court from "exceed[ing] its legislative authorization by imposing multiple punishments for the same offense." 432 U.S., at 165, 97 S.Ct., at 2225. In support of this dictum, which I believe ill-considered, Brown cited three cases: Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); and Gore v. United States, supra. In doing so, it tied together three separate strands of cases in what may prove to be a true Gordian knot. 35 In Ex parte Lange petitioner had been convicted under a statute authorizing a punishment of either fine or imprisonment. The District Court nevertheless sentenced him to a fine and imprisonment. Petitioner had paid his fine and had begun to serve his sentence when the District Court, apparently recognizing its mistake, held a new sentencing proceeding and resentenced him to imprisonment only. Noting that petitioner had fully satisfied the relevant statute by paying the fine, this Court held that he was entitled to protection from a second punishment "in the same court, on the same facts, for the same statutory offence." 18 Wall., at 168, 21 L.Ed. 872. As is borne out by subsequent cases, the Double Jeopardy Clause as interpreted in Ex parte Lange prevents a sentencing court from increasing a defendant's sentence for any particular statutory offense, even though the second sentence is within the limits set by the legislature. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931). See also United States v. Sacco, 367 F.2d 368 (CA2 1966); United States v. Adams, 362 F.2d 210 (CA6 1966); Kennedy v. United States, 330 F.2d 26 (CA9 1964). 36 In Bell v. United States, supra, this Court considered a question wholly different from that considered in Ex parte Lange and its progeny: the proper units into which a statutory offense was to be divided. The petitioner in Bell had been convicted of two counts of violating the Mann Act, 18 U.S.C. § 2421 et seq., for carrying two women across state lines for an immoral purpose. Both counts dealt with the same trip in the same car. The question presented to the Court was whether simultaneous transportation of more than one woman in violation of the Mann Act constituted multiple violations of that Act subjecting the offender to multiple punishments. The Court noted that Congress could, if it so desired, hinge the severity of the punishment on the number of women involved. Finding no evidence of such an intent, the Court applied the traditional "rule of lenity" and held that petitioner could only be punished for a single count. 37 Most significantly for our purposes, Bell was based entirely upon this Court's interpretation of the statute and the relevant legislative intent; it did not mention the Double Jeopardy Clause at all. In finding congressional intent on the appropriate unit of prosecution dispositive, the Court acted consistently with a long line of cases based in English common law. In Crepps v. Durden, 2 Cowp. 640, 98 Eng.Rep. 1283 (K.B.1777), Lord Mansfield, writing for a unanimous court, held that the sale of four loaves of bread on Sunday in violation of a statute forbidding such sale constituted one offense, not four. According to Lord Mansfield: "If the Act of Parliament gives authority to levy but one penalty there is an end of the question. . . ." Id., at 646, 98 Eng.Rep., at 1287. One hundred years later, this Court expressly adopted the reasoning of Crepps that the proper unit of prosecution was completely dependent upon the legislature's intent. See In re Snow, 120 U.S. 274, 283-286, 7 S.Ct. 556, 560-562, 30 L.Ed. 658 (1887). We have consistently abided by this rule since that time, noting on at least one occasion that "[t]here is no constitutional issue presented" in such cases. See Ladner v. United States, 358 U.S. 169, 173, 79 S.Ct. 209, 211, 3 L.Ed.2d 199 (1958). See also United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915). Cf. Sanabria v. United States, 437 U.S., at 69-70, 98 S.Ct., at 2181-2182 (successive prosecutions). 38 Gore v. United States, the third case cited in Brown, presented an issue analogous to, but slightly different from, that presented in Bell and the other unit-of-prosecution cases, namely, the permissibility of consecutive sentences when a defendant committed a single act that violated two or more criminal provisions. This issue, the precise one confronting us today, has been litigated in an astonishing number of statutory contexts with little apparent analytical consistency. See, e. g., Simpson v. United States; Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915); Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057 (1906); Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236 (1902). In some of these cases the Court seems to have recognized that it was attempting to divine legislative intent. See, e. g. Prince v. United States, supra, at 328, 77 S.Ct., at 406; Morgan v. Devine, supra, at 638-639, 35 S.Ct., at 713; Burton v. United States, supra, at 377, 26 S.Ct., at 697. In other cases, the Court seemed to apply a "same evidence" test borrowed from cases involving successive prosecutions.1 See, e. g. Pereira v. United States, supra, at 9, 74 S.Ct., at 363; Carter v. McClaughry, supra, at 394-395, 22 S.Ct., at 192-193. In still others it is difficult to determine the precise basis for the Court's decision. See, e. g. Harris v. United States, supra. As in the unit-of-prosecution cases, this Court has specified on at least one occasion that the erroneous imposition of cumulative sentences in a single case raises no constitutional issue at all. See Holiday v. Johnston, supra, at 349, 61 S.Ct., at 1017. 39 Unlike the Court, I believe that the Double Jeopardy Clause should play no role whatsoever in deciding whether cumulative punishments may be imposed under different statutes at a single criminal proceeding. I would analogize the present case to our unit-of-prosecution decisions and ask only whether Congress intended to allow a court to impose consecutive sentences on a person in petitioner's position. To paraphrase Lord Mansfield's statement in Crepps v. Durden, supra, that should be the end of the question. As even the Court's analysis of the merits here makes clear, see ante, at 690-694, traditional statutory interpretation as informed by the rule of lenity completely supplants any possible additional protection afforded petitioner by the Double Jeopardy Clause. 40 The difference in this context between a constitutional decision and a statutory decision is not merely one of judicial semantics. Both the Court and the concurrence appear to invoke the Double Jeopardy Clause to justify their refusal to defer to the District of Columbia Court of Appeals' interpretation of these locally applicable statutes. See ante, at 688 (opinion of the Court); ante, at 696 (BLACKMUN, J., concurring in judgment). The mischief in this approach, I believe, is well illustrated in a footnote—fairly described as either cryptic or tautological stating that "[t]he Due Process Clause of the Fourteenth Amendment . . . would presumably prohibit state courts from depriving persons of liberty or property as punishment for criminal conduct except to the extent authorized by state law." Ante, at 690, n. 4 (opinion of the Court). The effect of this and similar statements in the opinion of the Court, I fear, will be to raise doubts about questions of state law that heretofore had been thought to be exclusively the province of the highest courts of the individual States. To the extent that the Court implies that a state court can ever err in the interpretation of its own law and that such an error would create a federal question reviewable by this Court, I believe it clearly wrong.2 For the question in such cases is not whether the lower court "misread" the relevant statutes or its own common law, but rather who does the reading in the first place. II 41 Because the question before us is purely one of statutory interpretation, I believe that we should adhere to our "longstanding practice of not overruling the courts of the District on local law matters 'save in exceptional situations where egregious error has been committed.' " Pernell v. Southall Realty, 416 U.S. 363, 369, 94 S.Ct. 1723, 1726, 40 L.Ed.2d 198 (1974), quoting from Griffin v. United States, 336 U.S. 704, 718, 69 S.Ct. 814, 820, 93 L.Ed. 993 (1949). In the present case I would suggest that the lower court, far from committing "egregious error," engaged in analysis much more sophisticated than that employed by the Court herein and reached a conclusion that is not only defensible, but quite probably correct. 42 The Court's attempt to determine whether Congress intended multiple punishment in a case like petitioner's is really quite cramped. It looks first to the legislative history surrounding the adoption of the relevant provisions and finds that history inconclusive. See, ante, at 690, and n. 5. It then attempts to mechanistically apply the rule of statutory construction employed by this Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See ante, at 691-694. Under that test, two statutory provisions are deemed to constitute the "same offense" so as to preclude imposition of multiple punishments unless "each provision requires proof of a fact which the other does not." 284 U.S., at 304, 52 S.Ct., at 182. In Blockburger, for example, this Court determined that a provision forbidding the sale of certain drugs except in or from the original stamped package and a provision forbidding the selling of the same drugs "not in pursuance of a written order of the" purchaser defined separate offenses because "Each of the offenses created requires proof of a different element." Ibid. Thus, separate penalties could be imposed under each statute, even though both offenses were based on the same sale. 43 Two observations about the Blockburger test are especially relevant in this case. First, the test is a rule of statutory construction, not a constitutional talisman.3 See Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1293, n. 17, 43 L.Ed.2d 616 (1975). Having already posited that the Double Jeopardy Clause imposes no restraint upon a legislature's ability to provide for multiple punishments, I believe it clear that a legislature could, if it so desired, provide for separate punishments under two statutory provisions, even though those provisions define the "same offense" within the meaning of Blockburger. To take a simple example, a legislature might set the penalty for assault at two years' imprisonment while setting the penalty for assault with a deadly weapon as "two years for assault and an additional two years for assault with a deadly weapon." Even though the former crime is obviously a lesser included offense of the latter crime—or, in the rubric of Blockburger, the first offense does not require proof of any fact that the second does not—neither Blockburger nor the Double Jeopardy Clause would preclude the imposition of the "cumulative" sentence of two years.4 44 Second, the Blockburger test, although useful in identifying statutes that define greater and lesser included offenses in the traditional sense, is less satisfactory, and perhaps even misdirected, when applied to statutes defining "compound" and "predicate" offenses. Strictly speaking, two crimes do not stand in the relationship of greater and lesser included offenses unless proof of the greater necessarily entails proof of the lesser. See Brown v. Ohio, 432 U.S., at 167-168, 97 S.Ct., at 2226. See also Black's Law Dictionary 1048 (rev. 4th ed. 1968). In the case of assault and assault with a deadly weapon, proof of the latter offense will always entail proof of the former offense, and this relationship holds true regardless whether one examines the offenses in the abstract or in the context of a particular criminal transaction. 45 On the other hand, two statutes stand in the relationship of compound and predicate offenses when one statute incorporates several other offenses by reference and compounds those offenses if a certain additional element is present. To cite one example, 18 U.S.C. § 924(c)(1) states that "[w]hoever . . . uses a firearm to commit any felony for which he may be prosecuted in a court of the United States . . . shall . . . be sentenced to a term of imprisonment for not less than one year nor more than ten years." Clearly, any one of a plethora of felonies could serve as the predicate for a violation of § 924(c)(1). 46 This multiplicity of predicates creates problems when one attempts to apply Blockburger. If one applies the test in the abstract by looking solely to the wording of § 924(c)(1) and the statutes defining the various predicate felonies, Blockburger would always permit imposition of cumulative sentences, since no particular felony is ever "necessarily included" within a violation of § 924(c)(1). If, on the other hand, one looks to the facts alleged in a particular indictment brought under § 924(c)(1), then Blockburger would bar cumulative punishments for violating § 924(c)(1) and the particular predicate offense charged in the indictment, since proof of the former would necessarily entail proof of the latter. 47 Fortunately, in the case of § 924(c)(1) Congress made its intention explicit, stating unequivocally that the punishment for violation of that statute should be imposed "in addition to the punishment provided for the commission of [the predicate] felony . . . ." 18 U.S.C. § 924(c). But in the present case, where the statutes at issue also stand in the relationship of compound and predicate offenses, Congress has not stated its intentions so explicitly. The felony-murder statute under consideration here provides: 48 "Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, . . . rape, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree." D.C.Code § 22-2401 (1973). 49 The rape statute under consideration reads, in relevant part: 50 "Whoever has carnal knowledge of a female forcibly and against her will . . . shall be imprisoned for any term of years or for life." D.C.Code § 22-2801 (1973). 51 If one tests the above-quoted statutes in the abstract, one can see that rape is not a lesser included offense of felony murder, because proof of the latter will not necessarily require proof of the former. One can commit felony murder without rape and one can rape without committing felony murder. If one chooses to apply Blockburger to the indictment in the present case, however, rape is a "lesser included offense" of felony murder because, in this particular case, the prosecution could not prove felony murder without proving the predicate rape. 52 Because this Court has never been forced to apply Blockburger in the context of compound and predicate offenses,5 we have not had to decide whether Blockburger should be applied abstractly to the statutes in question or specifically to the indictment as framed in a particular case. Our past decisions seem to have assumed, however, that Blockburger § analysis stands or falls on the wording of the statutes alone. Thus, in Blockburger itself the Court stated that "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." 284 U.S., at 304, 52 S.Ct., at 182 (emphasis added). More recently, we framed the test as whether " 'each statute requires proof of an additional fact which the other does not. . . ." Brown v. Ohio, supra, at 166, 97 S.Ct., at 2226 quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871) (emphasis added). See also Iannelli v. United States, 420 U.S., at 785, n. 17, 95 S.Ct., at 1294 n. 17 ("[T]he Court's application of the [Blockburger] test focuses on the statutory elements of the offense"); M. Friedland, Double Jeopardy 212-213 (1969) (noting the two possible interpretations and pointing out that "the word 'provision' is specifically used in the test" as stated in Blockburger ). Moreover, because the Blockburger test is simply an attempt to determine legislative intent, it seems more natural to apply it to the language as drafted by the legislature than to the wording of a particular indictment. 53 The Court notes this ambiguity but chooses instead to apply the test to the indictment in the present case.6 See ante, at 693-694. In doing so, it offers only two reasons for rejecting what would seem to be the more plausible interpretation of Blockburger. First, the Court notes that Congress could have broken felony murder down in six separate statutory provisions, one for each of the predicate offenses specified in § 22-2401, thereby insuring that, under Blockburger, rape would be a lesser included offense of murder in the course of rape. According to the Court, "[i]t is doubtful that Congress could have imagined that so formal a difference in drafting had any practical significance, and we ascribe none to it." Ante, at 694. The short answer to this argument is that Congress did not break felony murder down into six separate statutory provisions. Thus, it hardly avails the Court to apply Blockburger to a statute that Congress did not enact. More significantly, however, I believe that the Court's example illustrates one of my central points: when applied to compound and predicate offenses, the Blockburger test has nothing whatsoever to do with legislative intent, turning instead on arbitrary assumptions and syntactical subtleties. Cf. n. 6, supra. If the polestar in this case is to be legislative intent, I see no reason to apply Blockburger unless it advances that inquiry. 54 Second, the Court asserts that "To the extent that . . . the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity." Ante, at 694. This assertion, I would suggest, forms the real foundation of the Court's decision. Finding no indication in the legislative history whether Congress intended cumulative punishment, and applying Blockburger with insolubly ambiguous results, the Court simply resolves its doubts in favor of petitioner and concludes that the rape committed by petitioner must merge into his conviction for felony murder. In doing so, the Court neglects the one source that should have been the starting point for its entire analysis: the lower court's construction of the relevant statutes. 55 Unlike this Court, the District of Columbia Court of Appeals looked beyond the ambiguous legislative history and the inconclusive Blockburger test to examine the common-law roots of the crime of felony murder and to consider the societal interests protected by the relevant statutes. As for the first source, the lower court concluded from the history of felony murder at common law that "while the underlying felony is an element of felony murder it serves a more important function as an intent-divining mechanism" and that merger of the two offenses was therefore "inappropriate." 379 A.2d 1152, 1160 (1977). In so reasoning, the lower court acted in conformity with this Court's long tradition of reading criminal statutes enacted by Congress "in the light of the common law. . . ." United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882). See also Morissette v. United States, 342 U.S. 246, 262-263, 72 S.Ct. 240, 249, 96 L.Ed. 288 (1952). 56 In addition to looking to the common law for assistance in determining Congress' intent, the lower court examined "the societal interests protected by the statutes under consideration." 379 A.2d, at 1158-1159. Because § 22-2801 was designed "to protect women from sexual assault" while § 22-2401 was intended "to protect human life," the court concluded that cumulative punishment was permissible. 379 A.2d, at 1159. Indeed, the Blockburger test itself could be viewed as nothing but a rough proxy for such analysis, since, by asking whether two separate statutes each include an element the other does not, a court is really asking whether the legislature manifested an intention to serve two different interests in enacting the two statutes. III 57 In sum, I find the lower court's reliance upon articulated considerations much more persuasive than this Court's capitulation to supposedly hopeless ambiguity. But even if the case were closer, I do not see how the lower court's conclusion could be classified as "egregious error" so as to justify our superimposing our own admittedly dubious construction of the statutes in question on the District of Columbia. Unless we are going to forgo deference to the interpretation of the highest court of the District of Columbia on matters of local applicability and are going to push several other well-recognized principles of statutory and constitutional construction out of shape, with consequences for the federal system for the 50 States, I would hope that the Court's decision would be one ultimately based on the "rule of lenity." Because I believe that the question confronting us is purely one of statutory construction and because I believe the analysis indulged in by the Court of Appeals for the District of Columbia comes far closer to the proper ascertainment of congressional intent than does this Court's opinion, I would affirm the judgment of the District of Columbia Court of Appeals. 1 The jury also convicted the petitioner of other felonies, but these convictions were set aside by the District of Columbia Court of Appeals, except for a second-degree murder conviction upon which the petitioner had received a concurrent sentence. The sentence itself was vacated by the appellate court. 2 The statute also provides for a sentence of death upon conviction for first-degree murder, but that provision has been held to be unconstitutional. See United States v. Stokes, 365 A.2d 615, 616 n. 4 (D.C.1976); United States v. Lee, 160 U.S.App.D.C. 118, 123, 489 F.2d 1242, 1247 (1973). 3 This is not to say that there are not constitutional limitations upon this power. See, e. g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982; Roe v. Wade, 410 U.S. 113, 164, 93 S.Ct. 705, 732, 35 L.Ed.2d 147; Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542; Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010; Robinson v. California, 370 U.S. 660, 666-667, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758. 4 Although the courts of the District of Columbia were created by Congress pursuant to its plenary Art. I power to legislate for the District, see Art. I, § 8, cl. 17; D.C.Code § 11-101(2) (1973), and are not affected by the salary and tenure provisions of Art. III, those courts, no less than other federal courts, may constitutionally impose only such punishments as Congress has seen fit to authorize. The Court has held that the doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States. Dreyer v. Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79. See Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 615, 94 S.Ct. 1323, 1330, 39 L.Ed.2d 630, and n. 13; Sweezy v. New Hampshire, 354 U.S. 234, 255, 77 S.Ct. 1203, 1214, 1 L.Ed.2d 1311; id., at 255, 256-257, 77 S.Ct., at 1214, 1214-1215 (Frankfurter, J., concurring in result). It is possible, therefore, that the Double Jeopardy Clause does not, through the Fourteenth Amendment, circumscribe the penal authority of state courts in the same manner that it limits the power of federal courts. The Due Process Clause of the Fourteenth Amendment, however, would presumably prohibit state courts from depriving persons of liberty or property as punishment for criminal conduct except to the extent authorized by state law. 5 Before 1962, conviction of first-degree murder in the District of Columbia led to a mandatory sentence of death by hanging. See Act of Mar. 3, 1901, § 801, 31 Stat. 1321. Accordingly, the question did not arise whether the sentence for another felony could run consecutively to that for first-degree murder. In 1962 Congress replaced the mandatory death penalty with the present language of D.C.Code § 22-2404 (1973), which allows, as an alternative to a penalty of death, a sentence of 20 years to life imprisonment. Pub.L. 87-423, 76 Stat. 46. Congress did not, however, address the matter of consecutive sentences in this amendatory legislation. The parties in the present case are in agreement that Congress intended a person convicted of felony murder to be subject to the same penalty as a person convicted of premeditated murder, see, e. g., 108 Cong.Rec. 4128-4129 (1962) (remarks of Sen. Hartke), and subject to more severe punishment than persons convicted of second-degree murder, see S.Rep.No.373, 87th Cong., 1st Sess., 2 (1961); H.R.Rep.No.677, 87th Cong., 1st Sess., 2 (1961). The parties disagree as to whether the consecutive sentences in this case are in accord with that congressional intent. The petitioner argues that if a consecutive sentence for rape were permitted, he would be punished more severely than if he had committed premeditated murder. The Government counters that the relevant comparison is with the sentences permitted for premeditated murder plus rape, which can be consecutive. Likewise, the Government argues that since consecutive sentences would be permissible for second-degree murder and rape, such sentences should be permitted here to avoid punishing felony murder and rape less harshly. In our view of this case, this controversy need not now be resolved. 6 The Government would read D.C.Code § 23-112 to mean that courts may ignore the Blockburger rule and freely impose consecutive sentences "whether or not" the statutory offenses are different under the rule. While this may be a permissible literal reading of the statute, it would lead to holding that the statute authorizes consecutive sentences for all greater and lesser included offenses—an extraordinary view that the Government itself disavows. Such an improbable construction of the statute would, moreover, be at odds with the evident congressional intention of requiring federal courts to adhere to the Blockburger rule in construing the penal provisions of the District of Columbia Code. See infra, this page and 1439. 7 There may be instances in which Congress has not intended cumulative punishments even for offenses that are different under the general provision contained in § 23-112. For example, in this case the District of Columbia Court of Appeals vacated the petitioner's sentence for second-degree murder, for the reason that, in the court's view, second-degree murder is a lesser included offense of first-degree felony murder, notwithstanding the fact that each offense requires proof of an element that the other does not. The correctness of the Court of Appeals' ruling in this regard is not an issue in this case. 8 Contrary to the view of the dissenting opinion, we do not in this case apply the Blockburger rule to the facts alleged in a particular indictment. Post, at 708-712. We have simply concluded that, for purposes of imposing cumulative sentences under D.C.Code § 23-112, Congress intended rape to be considered a lesser offense included within the offense of a killing in the course of rape. 9 See n. 5, supra. 10 This view is consistent with the settled rule that " 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,' " United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488, quoting Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493. See Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70; Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199; Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905. As the Court said in the Ladner opinion: "This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." 358 U.S., at 178, 79 S.Ct., at 214. 1 The Court in Brown cited the following decisions in support of its observations concerning the role of the Double Jeopardy Clause in multiple punishment cases: Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); and Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). See also Ashe v. Swenson, 397 U.S. 436, 460, n. 14, 90 S.Ct. 1189, 1202, 25 L.Ed.2d 469 (1970) (BRENNAN, J., concurring); M. Friedland, Double Jeopardy 205, 212 (1969); Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 S.Ct.Rev. 81, 112-113, 158-159; Note, Twice in Jeopardy, 75 Yale L.J. 262, 302-313 (1965). 2 See People v. Hughes, 85 Mich.App. 674, 272 N.W.2d 567 (1978); id., at 683-687, 272 N.W.2d, at 569-571 (Bronson, J., concurring); id., at 687-696, 272 N.W.2d, at 571-575 (Walsh, J., dissenting); Ennis v. State, 364 So.2d 497 (Fla.App.1978); id., at 500 (Grimes, C. J., concurring); and State v. Frye, 283 Md. 709, 393 A.2d 1372 (1978); id., at 725-726, 393 A.2d, at 1380-1381 (Murphy, C. J., concurring). In each of these state cases, the panels divided on the meaning of this Court's pronouncements respecting the Double Jeopardy Clause's prohibition against multiple punishments. See also cases cited in n. 3, infra. 3 Compare People v. Anderson, 62 Mich.App. 475, 233 N.W.2d 620 (1975) (a case in which a state court concluded, based on relevant indicia of legislative intent, that cumulative punishments for armed robbery and a felony murder based upon that robbery were not intended), with State v. Pinder, 375 So.2d 836 (Fla.1979); State v. Frye, 283 Md. 709, 393 A.2d 1372 (1978); State v. Innis, R.I., 391 A.2d 1158 (1978), cert. granted, 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 (1979); Mitchell v. State, Ind., 382 N.E.2d 932 (1978); Briggs v. State, 573 S.W.2d 157 (Tenn.1978) (the latter decisions, erroneously I believe, gave controlling effect to Harris in challenges to cumulative punishments for felony murder and the underlying felony). 1 The "same evidence" test was first formulated in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), where the Supreme Judicial Court of Massachusetts held: "A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." This Court has placed varying degrees of reliance upon this test both in the context of successive prosecutions, see, e. g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911), and in the context of multiple punishments imposed at a single criminal proceeding. See, e. g., Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236 (1902). See also infra, at 707-714. 2 We are not dealing here, of course, with a case where a state court has engaged in "retroactive lawmaking" by interpreting a local statute in an unforeseeable manner. Compare Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), with Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). 3 It should not matter whether the Blockburger test enters this case as a common canon of statutory construction, see Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1293, n. 17, 43 L.Ed.2d 616 (1975), or through the "less than felicitous" phrasing of D.C.Code § 23-112. See ante, at 691 (opinion of the Court). In either case, the dispositive question is whether the legislature intended to allow multiple punishments, and the Blockburger test should be employed only to the extent that it advances that inquiry. 4 In this regard, see also the discussion of the sentencing scheme under 18 U.S.C. § 924(c)(1), infra, at 709. 5 But see Simpson v. United States, 435 U.S. 6, 11-12, and n. 6, 98 S.Ct. 909, 912-913, n. 6, 55 L.Ed.2d 70 (1978) (reserving application of Blockburger in context of 18 U.S.C. § 924(c)); Jeffers v. United States, 432 U.S. 137, 149-150, 97 S.Ct. 2207, 2215-2216, 53 L.Ed.2d 168 (1977) (BLACKMUN, J.) (assuming, arguendo, that 21 U.S.C. § 846 is a lesser included offense of 21 U.S.C. § 848). But see also American Tobacco Co. v. United States, 328 U.S. 781, 788, 66 S.Ct. 1125, 1128, 90 L.Ed. 1575 (1946) (finding, under Blockburger, that conspiracies to violate §§ 1 and 2 of the Sherman Act could be punished separately). 6 The Court denies that it applies the Blockburger test to the indictment in this case, asserting instead that it merely concludes that "rape [is] to be considered a lesser offense included within the offense of a killing in the course of rape." Ante, at 694, n. 8. Our disagreement on this matter turns on the elusive meaning of the word "offense." Technically, § 22-2401 defines only one offense, murder in the first degree, which can be committed in any number of ways. Even if the inquiry is limited to the "sub-offense" of felony murder, § 22-2401 indicates that a person may be convicted if he kills purposely in the course of committing any felony or kills even accidentally in the course of committing one of six specified felonies. Only by limiting the inquiry to a killing committed in the course of a rape, a feat that cannot be accomplished without reference to the facts alleged in this particular case, can the Court conclude that the predicate offense is necessarily included in the compound offense under Blockburger. Because this Court has never before had to apply the Blockburger test to compound and predicate offenses, see n. 5, supra, and accompanying text, there is simply no precedent for parsing a single statutory provision in this fashion.

01

446 U.S. 55 100 S.Ct. 1490 64 L.Ed.2d 47 CITY OF MOBILE, ALABAMA, et al., Appellants,v.Wiley L. BOLDEN et al. No. 77-1844. Argued March 19, 1979. Reargued Oct. 29, 1979. Decided April 22, 1980. Syllabus Mobile, Ala., is governed by a Commission consisting of three members elected at large who jointly exercise all legislative, executive, and administrative power in the city. Appellees brought a class action in Federal District Court against the city and the incumbent Commissioners on behalf of all Negro citizens of the city, alleging, inter alia, that the practice of electing the City Commissioners at large unfairly diluted the voting strength of Negroes in violation of the Fourteenth and Fifteenth Amendments. Although finding that Negroes in Mobile "register and vote without hindrance," the District Court nevertheless held that the at-large electoral system violated the Fifteenth Amendment and invidiously discriminated against Negroes in violation of the Equal Protection Clause of the Fourteenth Amendment, and ordered that the Commission be disestablished and replaced by a Mayor and a Council elected from single-member districts. The Court of Appeals affirmed. Held : The judgment is reversed, and the case is remanded. Pp. 61-80 (opinion of STEWART, J.); Pp. 80-83 (opinion of BLACKMUN, J.); Pp. 83-94 (opinion of STEVENS, J.). 5th Cir., 571 F.2d 238, reversed and remanded. Mr. Justice STEWART, joined by THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST, concluded: 1 1. Mobile's at-large electoral system does not violate the rights of the city's Negro voters in contravention of the Fifteenth Amendment. Racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation. The Amendment does not entail the right to have Negro candidates elected but prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote "on account of race, color, or previous condition of servitude." Here, having found that Negroes in Mobile register and vote without hindrance, the courts below erred in believing that appellants invaded the protection of the Fifteenth Amendment. Pp. 61-65. 2 2. Nor does Mobile's at-large electoral system violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 65-80. 3 (a) Only if there is purposeful discrimination can there be a violation of the Equal Protection Clause. And this principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination. Pp. 66-68. 4 (b) Disproportionate effects alone are insufficient to establish a claim of unconstitutional racial vote dilution. Where the character of a law is readily explainable on grounds apart from race, as would nearly always be true where, as here, an entire system of local governance is brought into question, disproportionate impact alone cannot be decisive, and courts must look to other evidence to support a finding of discriminatory purpose. Pp. 68-70. 5 (c) Even assuming that an at-large municipal electoral system such as Mobile's is constitutionally indistinguishable from the election of a few members of a state legislature in multimember districts, it is clear that the evidence in this case fell far short of showing that appellants "conceived or operated [a] purposeful devic[e] to further racial . . . discrimination," Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363. Pp. 70-74. 6 (d) The Equal Protection Clause does not require proportional representation as an imperative of political organization. While the Clause confers a substantive right to participate in elections on an equal basis with other qualified voters, this right does not protect any "political group," however defined, from electoral defeat. Since Mobile is a unitary electoral district and the Commission elections are conducted at large, there can be no claim that the "one person, one vote" principle has been violated, and therefore nobody's vote has been "diluted" in the sense in which that word was used in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. Pp. 75-80. 7 Mr. Justice BLACKMUN concluded that the relief afforded appellees by the District Court was not commensurate with the sound exercise of judicial discretion. The court at least should have considered alternative remedial orders to converting Mobile's government to a mayor-council system, and in failing to do so the court appears to have been overly concerned with eliminating at-large elections per se, rather than with structuring an electoral system that provided an opportunity for black voters to participate in the city's government on an equal footing with whites. Pp. 80-83. 8 Mr. Justice STEVENS concluded that the proper standard for adjudging the constitutionality of a political structure, such as Mobile's, that treats all individuals as equals but adversely affects the political strength of an identifiable minority group, is the same whether the minority is identified by a racial, ethnic, religious, or economic characteristic; that Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, suggests that the standard asks (1) whether the political structure is manifestly not the product of a routine or traditional decision, (2) whether it has a significant adverse impact on a minority group, and (3) whether it is unsupported by any neutral justification and thus was either totally irrational or entirely motivated by a desire to curtail the political strength of the minority; and that the standard focuses on the objective effects of the political decision rather than the subjective motivation of the decisionmaker. Under this standard the choice to retain Mobile's commission form of government must be accepted as constitutionally permissible even though the choice may well be the product of mixed motivation, some of which is invidious. Pp. 83-94. 9 Charles S. Rhyne, Washington, D. C., for appellants. 10 James U. Blacksher, Mobile, Ala., for appellees. 11 James P. Turner, Washington, D. C., for the United States, as amicus curiae, in support of appellees. 12 Mr. Justice STEWART announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Mr. Justice POWELL, and Mr. Justice REHNQUIST joined. 13 The city of Mobile, Ala., has since 1911 been governed by a City Commission consisting of three members elected by the voters of the city at large. The question in this case is whether this at-large system of municipal elections violates the rights of Mobile's Negro voters in contravention of federal statutory or constitutional law. 14 The appellees brought this suit in the Federal District Court for the Southern District of Alabama as a class action on behalf of all Negro citizens of Mobile.1 Named as defendants were the city and its three incumbent Commissioners, who are the appellants before this Court. The complaint alleged that the practice of electing the City Commissioners at large unfairly diluted the voting strength of Negroes in violation of § 2 of the Voting Rights Act of 1965,2 of the Fourteenth Amendment, and of the Fifteenth Amendment. Following a bench trial, the District Court found that the constitutional rights of the appellees had been violated, entered a judgment in their favor, and ordered that the City Commission be disestablished and replaced by a municipal government consisting of a Mayor and a City Council with members elected from single-member districts. 423 F.Supp. 384.3 The Court of Appeals affirmed the judgment in its entirety, 5th Cir., 571 F.2d 238, agreeing that Mobile's at-large elections operated to discriminate against Negroes in violation of the Fourteenth and Fifteenth Amendments, id., at 245, and finding that the remedy formulated by the District Court was appropriate. An appeal was taken to this Court, and we noted probable jurisdiction, 439 U.S. 815, 99 S.Ct. 75, 58 L.Ed.2d 106. The case was originally argued in the 1978 Term, and was reargued in the present Term. 15 * In Alabama, the form of municipal government a city may adopt is governed by state law. Until 1911, cities not covered by specific legislation were limited to governing themselves through a mayor and city council.4 In that year, the Alabama Legislature authorized every large municipality to adopt a commission form of government.5 Mobile established its City Commission in the same year, and has maintained that basic system of municipal government ever since. 16 The three Commissioners jointly exercise all legislative, executive and administrative power in the municipality. They are required after election to designate one of their number as Mayor, a largely ceremonial office, but no formal provision is made for allocating specific executive or administrative duties among the three.6 As required by the state law enacted in 1911, each candidate for the Mobile City Commission runs for election in the city at large for a term of four years in one of three numbered posts, and may be elected only by a majority of the total vote. This is the same basic electoral system that is followed by literally thousands of municipalities and other local governmental units throughout the Nation.7 II 17 Although required by general principles of judicial administration to do so, Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101; Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (Brandeis, J., concurring), neither the District Court nor the Court of Appeals addressed the complaint's statutory claim—that the Mobile electoral system violates § 2 of the Voting Rights Act of 1965. Even a cursory examination of that claim, however, clearly discloses that it adds nothing to the appellees' complaint. 18 Section 2 of the Voting Rights Act provides: 19 "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." 79 Stat. 437, as amended, 42 U.S.C. § 1973. 20 Assuming, for present purposes, that there exists a private right of action to enforce this statutory provision,8 it is apparent that the language of § 2 no more than elaborates upon that of the Fifteenth Amendment,9 and the sparse legislative history of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself. 21 Section 2 was an uncontroversial provision in proposed legislation whose other provisions engendered protracted dispute. The House Report on the bill simply recited that § 2 "grants . . . a right to be free from enactment or enforcement of voting qualifications . . . or practices which deny or abridge the right to vote on account of race or color." H.R.Rep. No. 439, 89th Cong., 1st Sess., 23 (1965), U.S.Code Cong. & Admin.News, 1965, pp. 2437, 2453. See also S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). The view that this section simply restated the prohibitions already contained in the Fifteenth Amendment was expressed without contradiction during the Senate hearings. Senator Dirksen indicated at one point that all States, whether or not covered by the preclearance provisions of § 5 of the proposed legislation, were prohibited from discriminating against Negro voters by § 2, which he termed "almost a rephrasing of the 15th [A]mendment." Attorney General Katzenbach agreed. See Voting Rights: Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, p. 208 (1965). 22 In view of the section's language and its sparse but clear legislative history, it is evident that this statutory provision adds nothing to the appellees' Fifteenth Amendment claim. We turn, therefore, to a consideration of the validity of the judgment of the Court of Appeals with respect to the Fifteenth Amendment. III 23 The Court's early decisions under the Fifteenth Amendment established that it imposes but one limitation on the powers of the States. It forbids them to discriminate against Negroes in matters having to do with voting. See Ex parte Yarbrough, 110 U.S. 651, 665, 4 S.Ct. 152, 159, 28 L.Ed. 274; Neal v. Delaware, 103 U.S. 370, 389-390, 26 L.Ed. 567; United States v. Cruikshank, 92 U.S. 542, 555-556, 23 L.Ed. 588; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563. The Amendment's command and effect are wholly negative. "The Fifteenth Amendment does not confer the right of suffrage upon any one," but has "invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude." Id., at 217-218. 24 Our decisions, moreover, have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose. In Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340, this Court struck down a "grandfather" clause in a state constitution exempting from the requirement that voters be literate any person or the descendants of any person who had been entitled to vote before January 1, 1866. It was asserted by way of defense that the provision was immune from successful challenge, since a law could not be found unconstitutional either "by attributing to the legislative authority an occult motive," or "because of conclusions concerning its operation in practical execution and resulting discrimination arising . . . from inequalities naturally inhering in those who must come within the standard in order to enjoy the right to vote." Id., at 359, 35 S.Ct., at 929. Despite this argument, the Court did not hesitate to hold the grandfather clause unconstitutional, because it was not "possible to discover any basis in reason for the standard thus fixed other than the purpose" to circumvent the Fifteenth Amendment. Id., at 365, 35 S.Ct., at 931. 25 The Court's more recent decisions confirm the principle that racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation. In Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed. 2d 110, the Court held that allegations of a racially motivated gerrymander of municipal boundaries stated a claim under the Fifteenth Amendment. The constitutional infirmity of the state law in that case, according to the allegations of the complaint, was that in drawing the municipal boundaries the legislature was "solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote." Id., at 341, 81 S.Ct., at 127. The Court made clear that in the absence of such an invidious purpose, a State is constitutionally free to redraw political boundaries in any manner it chooses. Id., at 347, 81 S.Ct., at 130.10 26 In Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512, the Court upheld by like reasoning a state congressional reapportionment statute against claims that district lines had been racially gerrymandered, because the plaintiffs failed to prove that the legislature "was either motivated by racial considerations or in fact drew the districts on racial lines"; or that the statute "was the product of a state contrivance to segregate on the basis of race or place of origin." Id., at 56, 58, 84 S.Ct., at 605-06.11 See also Lassiter v. Northampton Election Bd., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072; Lane v. Wilson, 307 U.S. 268, 275-277, 59 S.Ct. 872, 876, 83 L.Ed. 1281. 27 While other of the Court's Fifteenth Amendment decisions have dealt with different issues, none has questioned the necessity of showing purposeful discrimination in order to show a Fifteenth Amendment violation. The cases of Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, and Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152, for example, dealt with the question whether a State was so involved with racially discriminatory voting practices as to invoke the Amendment's protection. Although their facts differed somewhat, the question in both cases was whether the State was sufficiently implicated in the conduct of racially exclusionary primary elections to make that discrimination an abridgment of the right to vote by a State. Since the Texas Democratic Party primary in Smith v. Allwright was regulated by statute, and only party nominees chosen in a primary were placed on the ballot for the general election, the Court concluded that the state Democratic Party had become the agency of the State, and that the State thereby had "endorse[d], adopt[ed] and enforce[d] the discrimination against Negroes, practiced by a party." 321 U.S., at 664, 64 S.Ct., at 765. 28 Terry v. Adams, supra, posed a more difficult question of state involvement. The primary election challenged in that case was conducted by a county political organization, the Jaybird Association, that was neither authorized nor regulated under state law. The candidates chosen in the Jaybird primary, however, invariably won in the subsequent Democratic primary and in the general election, and the Court found that the Fifteenth Amendment had been violated. Although the several supporting opinions differed in their formulation of this conclusion, there was agreement that the State was involved in the purposeful exclusion of Negroes from participation in the election process. 29 The appellees have argued in this Court that Smith v. Allwright and Terry v. Adams support the conclusion that the at-large system of elections in Mobile is unconstitutional, reasoning that the effect of racially polarized voting in Mobile is the same as that of a racially exclusionary primary. The only characteristic, however, of the exclusionary primaries that offended the Fifteenth Amendment was that Negroes were not permitted to vote in them. The difficult question was whether the "State ha[d] had a hand in" the patent dis crimination practiced by a nominally private organization. Terry v. Adams, supra, at 473, 73 S.Ct., at 815 (opinion of Frankfurter, J.). 30 The answer to the appellees' argument is that, as the District Court expressly found, their freedom to vote has not been denied or abridged by anyone. The Fifteenth Amendment does not entail the right to have Negro candidates elected, and neither Smith v. Allwright nor Terry v. Adams contains any implication to the contrary. That Amendment prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote "on account of race, color, or previous condition of servitude." Having found that Negroes in Mobile "register and vote without hindrance," the District Court and Court of Appeals were in error in believing that the appellants invaded the protection of that Amendment in the present case. IV 31 The Court of Appeals also agreed with the District Court that Mobile's at-large electoral system violates the Equal Protection Clause of the Fourteenth Amendment. There remains for consideration, therefore, the validity of its judgment on that score. A. 32 The claim that at-large electoral schemes unconstitutionally deny to some persons the equal protection of the laws has been advanced in numerous cases before this Court. That contention has been raised most often with regard to multimember constituencies within a state legislative apportionment system. The constitutional objection to multimember districts is not and cannot be that, as such, they depart from apportionment on a population basis in violation of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and its progeny. Rather the focus in such cases has been on the lack of representation multimember districts afford various elements of the voting population in a system of representative legislative democracy. "Criticism [of multimember districts] is rooted in their winnertake-all aspects, their tendency to submerge minorities . . ., a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests." Whitcomb v. Chavis, 403 U.S. 124, 158-159, 91 S.Ct. 1858, 1877, 29 L.Ed.2d 363. 33 Despite repeated constitutional attacks upon multimember legislative districts, the Court has consistently held that they are not unconstitutional per se, e. g., White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314; Whitcomb v. Chavis, supra; Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771; Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376; Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401.12 We have recognized, however, that such legislative apportionments could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. See White v. Regester, supra; Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To prove such a purpose it is not enough to show that the group allegedly discriminated against has not elected representatives in proportion to its numbers. White v. Regester, supra, 412 U.S., at 765-766, 93 S.Ct., at 2339; Whitcomb v. Chavis, 403 U.S., at 149-150, 91 S.Ct., at 1872. A plaintiff must prove that the disputed plan was "conceived or operated as [a] purposeful devic[e] to further racial . . . discrimination," id., at 149, 91 S.Ct. at 1872. 34 This burden of proof is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870. The Court explicitly indicated in Washington v. Davis that this principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination. Indeed, the Court's opinion in that case viewed Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512, as an apt illustration of the principle that an illicit purpose must be proved before a constitutional violation can be found. The Court said: 35 "The rule is the same in other contexts. Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), upheld a New York congressional apportionment statute against claims that district lines had been racially gerrymandered. The challenged districts were made up predominantly of whites or of minority races, and their boundaries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York Legislature 'was either motivated by racial considerations or in fact drew the districts on racial lines'; the plaintiffs had not shown that the statute 'was the product of a state contrivance to segregate on the basis of race or place of origin.' Id., at 56, 58, 84 S.Ct., at 605. The dissenters were in agreement that the issue was whether the 'boundaries . . . were purposefully drawn on racial lines.' Id., at 67, 84 S.Ct., at 611." Washington v. Davis, supra, 426 U.S., at 240, 96 S.Ct., at 2047-48. 36 More recently, in Arlington Heights v. Metropolitan Housing Dev. Corp., supra, the Court again relied on Wright v. Rockefeller to illustrate the principle that "[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." 429 U.S., at 265, 97 S.Ct., at 563. Although dicta may be drawn from a few of the Court's earlier opinions suggesting that disproportionate effects alone may establish a claim of unconstitutional racial voter dilution, the fact is that such a view is not supported by any decision of this Court.13 More importantly, such a view is not consistent with the meaning of the Equal Protection Clause as it has been understood in a variety of other contexts involving alleged racial discrimination. Washington v. Davis, supra (employment); Arlington Heights v. Metropolitan Housing Corp., supra (zoning); Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (public schools); Akins v. Texas, 325 U.S. 398, 403-404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (jury selection). 37 In only one case has the Court sustained a claim that multimember legislative districts unconstitutionally diluted the voting strength of a discrete group. That case was White v. Regester. There the Court upheld a constitutional challenge by Negroes and Mexican-Americans to parts of a legislative reapportionment plan adopted by the State of Texas. The plaintiffs alleged that the multimember districts for the two counties in which they resided minimized the effect of their votes in violation of the Fourteenth Amendment, and the Court held that the plaintiffs had been able to "produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group[s] in question." 412 U.S., at 766, 767, 93 S.Ct. at 2339. In so holding, the Court relied upon evidence in the record that included a long history of official discrimination against minorities as well as indifference to their needs and interests on the part of white elected officials. The Court also found in each county additional factors that restricted the access of minority groups to the political process. In one county, Negroes effectively were excluded from the process of slating candidates for the Democratic Party, while the plaintiffs in the other county were Mexican-Americans who "suffer[ed] a cultural and language barrier" that made "participation in community processes extremely difficult, PARTICULARLY . . . WITH RESPECT TO THE POLITICAL LIFE" OF THE COUNTY. id. at 768, 93 S.Ct., at 2340-41 (footnote omitted). 38 White v. Regester is thus consistent with "the basic equal protection principle that the invidious equality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose," Washington v. Davis, 426 U.S., at 240, 96 S.Ct., at 2048. The Court stated the constitutional question in White to be whether the "multimember districts [were] being used invidiously to minimize or cancel out or minimize the voting strength of racial groups," 412 U.S., at 765, 93 S.Ct., at 2339 (emphasis added), strongly indicating that only a purposeful dilution of the plaintiffs' vote would offend the Equal Protection Clause.14 Moreover, much of the evidence on which the Court relied in that case was relevant only for the reason that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact." Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 264-265, 97 S.Ct., at 563. Of course, "[t]he impact of the official action—whether it 'bears more heavily on one race than another,' Washington v. Davis, supra, 426 U.S., at 242, 96 S.Ct., at 2049—may provide an important starting point." Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 266, 97 S.Ct., at 564. But where the character of a law is readily explainable on grounds apart from race, as would nearly always be true where, as here, an entire system of local governance is brought into question, disproportionate impact alone cannot be decisive, and courts must look to other evidence to support a finding of discriminatory purpose. See ibid.; Washington v. Davis, supra, at 242, 96 S.Ct., at 2048. 39 We may assume, for present purposes, that an at-large election of city officials with all the legislative, executive, and administrative power of the municipal government is constitutionally indistinguishable from the election of a few members of a state legislative body in multimember districts although this may be a rash assumption.15 But even making this assumption, it is clear that the evidence in the present case fell far short of showing that the appellants "conceived or operated [a] purposeful devic[e] to further racial . . . discrimination." Whitcomb v. Chavis, 403 U.S., at 149, 91 S.Ct., at 1872. 40 The District Court assessed the appellees' claims in light of the standard that had been articulated by the Court of Appeals for the Fifth Circuit in Zimmer v. McKeithen, 485 F.2d 1297. That case, coming before Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, was quite evidently decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause—that proof of a discriminatory effect is sufficient. See 485 F.2d, at 1304-1305, and n. 16.16 41 In light of the criteria identified in Zimmer, the District Court based its conclusion of unconstitutionality primarily on the fact that no Negro had ever been elected to the City Commission, apparently because of the pervasiveness of racially polarized voting in Mobile. The trial court also found that city officials had not been as responsive to the interests of Negroes as to those of white persons. On the basis of these findings, the court concluded that the political processes in Mobile were not equally open to Negroes, despite its seemingly inconsistent findings that there were no inhibitions against Negroes becoming candidates, and that in fact Negroes had registered and voted without hindrance. 423 F.Supp., at 387. Finally, with little additional discussion, the District Court held that Mobile's at-large electoral system was invidiously discriminating against Negroes in violation of the Equal Protection Clause.17 42 In affirming the District Court, the Court of Appeals acknowledged that the Equal Protection Clause of the Fourteenth Amendment reaches only purposeful discrimination,18 but held that one way a plaintiff may establish this illicit purpose is by adducing evidence that satisfies the criteria of its decision in Zimmer v. McKeithen, supra. Thus, because the appellees had proved an "aggregate" of the Zimmer factors, the Court of Appeals concluded that a discriminatory purpose had been proved. That approach, however, is inconsistent with our decisions in Washington v. Davis, supra, and Arlington Heights, supra. Although the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose, satisfaction of those criteria is not of itself sufficient proof of such a purpose. The so-calledZimmer criteria upon which the District Court and the Court of Appeals relied were most assuredly insufficient to prove an unconstitutionally discriminatory purpose in the present case. 43 First, the two courts found it highly significant that no Negro had been elected to the Mobile City Commission. From this fact they concluded that the processes leading to nomination and election were not open equally to Negroes. But the District Court's findings of fact, unquestioned on appeal, make clear that Negroes register and vote in Mobile "without hindrance," and that there are no official obstacles in the way of Negroes who wish to become candidates for election to the Commission. Indeed, it was undisputed that the only active "slating" organization in the city is comprised of Negroes. It may be that Negro candidates have been defeated but that fact alone does not work a constitutional deprivation. Whitcomb v. Chavis, 403 U.S., at 160, 91 S.Ct., at 1877; see Arlington Heights, 429 U.S., at 266, and n. 15, 97 S.Ct., at 564 and n. 15.19 44 Second, the District Court relied in part on its finding that the persons who were elected to the Commission discriminated against Negroes in municipal employment and in dispensing public services. If that is the case, those discriminated against may be entitled to relief under the Constitution, albeit of a sort quite different from that sought in the present case. The Equal Protection Clause proscribes purposeful discrimination because of race by any unit of state government, whatever the method of its election. But evidence of discrimination by white officials in Mobile is relevant only as the most tenuous and circumstantial evidence of the constitutional invalidity of the electoral system under which they attained their offices.20 45 Third, the District Court and the Court of Appeals supported their conclusion by drawing upon the substantial history of official racial discrimination in Alabama. But past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. More distant instances of official discrimination in other cases are of limited help in resolving that question. 46 Finally, the District Court and the Court of Appeals pointed to the mechanics of the at-large electoral system itself as proof that the votes of Negroes were being invidiously canceled out. But those features of that electoral system, such as the majority vote requirement, tend naturally to disadvantage any voting minority, as we noted in White v. Regester, supra. They are far from proof that the at-large electoral scheme represents purposeful discrimination against Negro voters.21 B 47 We turn finally to the arguments advanced in Part I of Mr. Justice MARSHALL's dissenting opinion. The theory of this dissenting opinion—a theory much more extreme than that espoused by the District Court or the Court of Appeals—appears to be that every "political group," or at least every such group that is in the minority, has a federal constitutional right to elect candidates in proportion to its numbers.22 Moreover, a political group's "right" to have its candidates elected is said to be a "fundamental interest," the infringement of which may be established without proof that a State has acted with the purpose of impairing anybody's access to the political process. This dissenting opinion finds the "right" infringed in the present case because no Negro has been elected to the Mobile City Commission. 48 Whatever appeal the dissenting opinion's view may have as a matter of political theory, it is not the law. The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization. The entitlement that the dissenting opinion assumes to exist simply is not to be found in the Constitution of the United States. 49 It is of course true that a law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional. See Shapiro v. Thompson, 394 U.S. 618, 634, 638, 89 S.Ct. 1322, 1333, 22 L.Ed.2d 600, id., at 642-644, 89 S.Ct., at 1335-1336 (concurring opinion). See also San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 30-32, 93 S.Ct. 1278, 1288, 1295-1296, 36 L.Ed.2d 16. But plainly "[i]t is not the province of this court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws," id., at 33, 93 S.Ct., at 1297. See Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36; Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491. Accordingly, where a state law does not impair a right or liberty protected by the Constitution, there is no occasion to depart from "the settled mode of constitutional analysis of legislat[ion] . . . involving questions of economic and social policy," San Antonio Independent School Dist. v. Rodriguez, supra, 411 U.S., at 33, 93 S.Ct., at 1296.23 Mr. Justice MARSHALL's dissenting opinion would discard these fixed principles in favor of a judicial inventiveness that would go "far toward making this Court a 'super-legislature.' " Shapiro v. Thompson, supra, 394 U.S. at 655, 661, 89 S.Ct., at 1346 (Harlan, J., dissenting). We are not free to do so. 50 More than 100 years ago the Court unanimously held that "the Constitution of the United States does not confer the right of suffrage upon any one. . . ." Minor v. Happersett, 21 Wall. 162, 178, 22 L.Ed. 627. See Lassiter v. Northampton Election Bd., 360 U.S., at 50-51, 79 S.Ct., at 989. It is for the States "to determine the conditions under which the right of suffrage may be exercised . . ., absent of course the discrimination which the Constitution condemns," ibid. It is true, as the dissenting opinion states, that the Equal Protection Clause confers a substantive right to participate in elections on an equal basis with other qualified voters. See Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274; Reynolds v. Sims, 377 U.S., at 576, 84 S.Ct., at 1389. But this right to equal participation in the electoral process does not protect any "political group," however defined, from electoral defeat.24 51 The dissenting opinion erroneously discovers the asserted entitlement to group representation within the "one person-one vote" principle of Reynolds v. Sims, supra, and its progeny.25 Those cases established that the Equal Protection Clause guarantees the right of each voter to "have his vote weighted equally with those of all other citizens." 377 U.S., at 576, 84 S.Ct., at 1389. The Court recognized that a voter's right to "have an equally effective voice" in the election of representatives is impaired where representation is not apportioned substantially on a population basis. In such cases, the votes of persons in more populous districts carry less weight than do those of persons in smaller districts. There can be, of course, no claim that the "one person, one vote" principle has been violated in this case, because the city of Mobile is a unitary electoral district and the Commission elections are conducted at large. It is therefore obvious that nobody's vote has been "diluted" in the sense in which that word was used in the Reynolds case. 52 The dissenting opinion places an extraordinary interpretation on these decisions, an interpretation not justified by Reynolds v. Sims itself or by any other decision of this Court. It is, of course, true that the right of a person to vote on an equal basis with other voters draws much of its significance from the political associations that its exercise reflects, but it is an altogether different matter to conclude that political groups themselves have an independent constitutional claim to representation.26 And the Court's decisions hold squarely that they do not. See United Jewish Organizations v. Carey, 430 U.S. 144, 166-167, 97 S.Ct. 996, 1010, 51 L.Ed.2d 229; id., at 179-180, 97 S.Ct., at 1016-1017 (opinion concurring in judgment); White v. Regester, 412 U.S., at 765-766, 93 S.Ct., at 2339; Whitcomb v. Chavis, 403 U.S., at 149-150, 153-154, 156-157, 91 S.Ct., at 1872, 1873-1874, 1875-1876. 53 The fact is that the Court has sternly set its face against the claim, however phrased, that the Constitution somehow guarantees proportional representation. In Whitcomb v. Chavis, supra, the trial court had found that a multimember state legislative district had invidiously deprived Negroes and poor persons of rights guaranteed them by the Constitution, notwithstanding the absence of any evidence whatever of discrimination against them. Reversing the trial court, this Court said: 54 "The District Court's holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote. There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many, if not most, multi-member districts to survive analysis under the District Court's view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed at providing representation for minority parties or interests. At the very least, affirmance of the District Court would spawn endless litigation concerning the multi-member district systems now widely employed in this country." Whitcomb v. Chavis, supra, at 156-157, 91 S.Ct., at 1876 (footnotes omitted). V 55 The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings. 56 It is so ordered. 57 Mr. Justice BLACKMUN, concurring in the result. 58 Assuming that proof of intent is a prerequisite to appellees' prevailing on their constitutional claim of vote dilution, I am inclined to agree with Mr. Justice WHITE that, in this case, "the findings of the District Court amply support an inference of purposeful discrimination," post, at 103. I concur in the Court's judgment of reversal, however, because I believe that the relief afforded appellees by the District Court was not commensurate with the sound exercise of judicial discretion. 59 It seems to me that the city of Mobile, and its citizenry, have a substantial interest in maintaining the commission form of government that has been in effect there for nearly 70 years. The District Court recognized that its remedial order, changing the form of the city's government to a mayor-council system, "raised serious constitutional issues." 423 F.Supp. 384, 404 (SD Ala.1976). Nonetheless, the court was "unable to see how the impermissibly unconstitutional dilution can be effectively corrected by any other approach." Id., at 403. 60 The Court of Appeals approved the remedial measures adopted by the District Court and did so essentially on three factors: (1) this Court's preference for single-member districting in court-ordered legislative reapportionment, absent special circumstances, see, e. g., Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 1834, 52 L.Ed.2d 465 (1977); (2) appellants' noncooperation with the District Court's request for the submission of proposed municipal government plans that called for single-member districts for councilmen, under a mayor-council system of government; and (3) the temporary nature of the relief afforded by the District Court, the city or State being free to adopt a "constitutional replacement" for the District Court's plan in the future. 571 F.2d 238, 247 (CA5 1978). 61 Contrary to the Court of Appeals, I believe that special circumstances are presented when a District Court "reapportions" a municipal government by altering its basic structures. See also the opinion of Mr. Justice STEWART, ante, at 70, and n. 15. See Chapman v. Meier, 420 U.S. 1, 20, n. 14, 95 S.Ct. 751, 762, n. 14, 42 L.Ed.2d 766 (1975); Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.2d 1 (1972). I also believe that the city's failure to submit a proposed plan to the District Court was excused by the fact that the only proposals the court was interested in receiving were variations on a mayor-council plan utilizing single-member districts. Finally, although the District Court's order may have been temporary, it was unlikely that the courts below would have approved any attempt by Mobile to return to the commission form of government. And even a temporary alteration of a long-established form of municipal government is a drastic measure for a court to take. 62 Contrary to the District Court, I do not believe that, in order to remedy the unconstitutional vote dilution it found, it was necessary to convert Mobile's city government to a mayor-council system. In my view, the District Court at least should have considered alternative remedial orders that would have maintained some of the basic elements of the commission system Mobile long ago had selected—joint exercise of legislative and executive power, and citywide representation. In the first place, I see no reason for the court to have separated legislative and executive power in the city of Mobile by creating the office of mayor. In the second place, the court could have, and in my view should have, considered expanding the size of the Mobile City Commission and providing for the election of at least some commissioners at large. Alternative plans might have retained at-large elections for all commissioners while imposing district residency requirements that would have insured the election of a commission that was a cross section of all of Mobile's neighborhoods, or a plurality-win system that would have provided the potential for the effective use of single-shot voting by black voters. See City of Rome v. United States, 446 U.S., at 184, n. 19, 100 S.Ct., at 1566, n. 19. In failing to consider such alternative plans, it appears to me that the District Court was perhaps overly concerned with the elimination of at-large electionsper se, rather than with structuring an electoral system that provided an opportunity for black voters in Mobile to participate in the city's government on an equal footing with whites. 63 In the past, this Court has emphasized that a district court's remedial power "may be exercised only on the basis of a constitutional violation," and that "the nature of the violation determines the scope of the remedy." Swann v. Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). I am not convinced that any violation of federal constitutional rights established by appellees required the District Court to dismantle Mobile's commission form of government and replace it with a mayor-council system. Accordingly, I, too, would reverse the judgment of the Court of Appeals, and remand the case for reconsideration of an appropriate remedy. 64 Mr. Justice STEVENS, concurring in the judgment. 65 At issue in this case is the constitutionality of the city of Mobile's commission form of government. Black citizens in Mobile, who constitute a minority of that city's registered voters, challenged the at-large nature of the elections for the three positions of City Commissioner, contending that the system "dilutes" their votes in violation of the Fifteenth Amendment and the Equal Protection Clause of the Fourteenth Amendment. While I agree with Mr. Justice STEWART that no violation of respondents' constitutional rights has been demonstrated, my analysis of the issue proceeds along somewhat different lines. 66 In my view, there is a fundamental distinction between state action that inhibits an individual's right to vote and state action that affects the political strength of various groups that compete for leadership in a democratically governed community. That distinction divides so-called vote dilution practices into two different categories "governed by entirely different constitutional considerations," see Wright v. Rockefeller, 376 U.S. 52, 58, 84 S.Ct. 603, 606, 11 L.Ed.2d 512 (Harlan, J., concurring). 67 In the first category are practices such as poll taxes or literacy tests that deny individuals access to the ballot. Districting practices that make an individual's vote in a heavily populated district less significant than an individual's vote in a smaller district also belong in that category. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506.1 Such practices must be tested by the strictest of constitutional standards, whether challenged under the Fifteenth Amendment or under the Equal Protection Clause of the Fourteenth Amendment. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274. 68 This case does not fit within the first category. The District Court found that black citizens in Mobile "register and vote without hindrance"2 and there is no claim that any individual's vote is worth less than any other's. Rather, this case draws into question a political structure that treats all individuals as equals but adversely affects the political strength of a racially identifiable group. Although I am satisfied that such a structure may be challenged under the Fifteenth Amendment as well as under the Equal Protection Clause of the Fourteenth Amendment,3 I believe that under either provision it must be judged by a standard that allows the political process to function effectively. 69 My conclusion that the Fifteenth Amendment applies to a case such as this rests on this Court's opinion in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. That case established that the Fifteenth Amendment does not simply guarantee the individual's right to vote; it also limits the States' power to draw political boundaries. Although Gomillion involved a districting structure that completely excluded the members of one race from participation in the city's elections,4 it does not stand for the proposition that no racial group can prevail on a Fifteenth Amendment claim unless it proves that an electoral system has the effect of making its members' right to vote, in Mr. Justice MARSHALL's words, "nothing more than the right to cast meaningless ballots." Post, 446 U.S., at 104, 100 S.Ct., at 1520. I agree with Mr. Justice MARSHALL that the Fifteenth Amendment need not and should not be so narrowly construed. I do not agree, however, with his view that every "showing of discriminatory impact" on a historically and socially disadvantaged racial group, post, at 104, 111, n. 7, 100 S.Ct., at 1520, 1524, n. 7, is sufficient to invalidate a districting plan.5 70 Neither Gomillion nor any other case decided by this Court establishes a constitutional right to proportional representation for racial minorities.6 What Gomillion holds is that a sufficiently "uncouth" or irrational racial gerrymander violates the Fifteenth Amendment. As Mr. Justice Whittaker's concurrence in that case demonstrates, the same result is compelled by the Equal Protection Clause of the Fourteenth Amendment. See 364 U.S., at 349, 81 S.Ct., at 131. The fact that the "gerrymander" condemned in Gomillion was equally vulnerable under both Amendments indicates that the essential holding of that case is applicable, not merely to gerrymanders directed against racial minorities, but to those aimed at religious, ethnic, economic, and political groups as well. Whatever the proper standard for identifying an unconstitutional gerrymander may be, I have long been persuaded that it must apply equally to all forms of political gerrymandering—not just to racial gerrymandering. See Cousins v. City Council of Chicago, 466 F.2d 830, 848-852 (CA7 1972) (Stevens, J., dissenting), cert. denied, 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 151.7 71 This conclusion follows, I believe, from the very nature of a gerrymander. By definition, gerrymandering involves drawing district boundaries (or using multimember districts or at-large elections) in order to maximize the voting strength of those loyal to the dominant political faction and to minimize the strength of those opposed to it.8 466 F.2d, at 847. In seeking the desired result, legislators necessarily make judgments about the probability that the members of certain identifiable groups, whether racial, ethnic, economic, or religious, will vote in the same way. The success of the gerrymander from the legislators' point of view, as well as its impact on the disadvantaged group, depends on the accuracy of those predictions. 72 A prediction based on a racial characteristic is not necessarily more reliable than a prediction based on some other group characteristic. Nor, since a legislator's ultimate purpose in making the prediction is political in character, is it necessarily more invidious or benign than a prediction based on other group characteristics.9 In the line-drawing process, racial, religious, ethnic, and economic gerrymanders are all species of political gerrymanders. 73 From the standpoint of the groups of voters that are affected by the line-drawing process, it is also important to recognize that it is the group's interest in gaining or maintaining political power that is at stake. The mere fact that a number of citizens share a common ethnic, racial, or religious background does not create the need for protection against gerrymandering. It is only when their common interests are strong enough to be manifested in political action that the need arises. For the political strength of a group is not a function of its ethnic, racial, or religious composition; rather, it is a function of numbers—specifically the number of persons who will vote in the same way. In the long run there is no more certainty that individual members of racial groups will vote alike than that members of other identifiable groups will do so. And surely there is no national interest in creating an incentive to define political groups by racial characteristics.10 But if the Constitution were interpreted to give more favorable treatment to a racial minority alleging an unconstitutional impairment of its political strength than it gives to other identifiable groups making the same claim such an incentive would inevitably result. 74 My conclusion that the same standard should be applied to racial groups as is applied to other groups leads me also to conclude that the standard cannot condemn every adverse impact on one or more political groups without spawning more dilution litigation than the judiciary can manage. Difficult as the issues engendered by Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, may have been, nothing comparable to the mathematical yardstick used in apportionment cases is available to identify the difference between permissible and impermissible adverse impacts on the voting strength of political groups. 75 In its prior cases the Court has phrased the standard as being whether the districting practices in question "unconstitutionally operate to dilute or cancel the voting strength of racial or political elements." Whitcomb v. Chavis, 403 U.S. 124, 144, 91 S.Ct. 1858, 1869, 29 L.Ed.2d 363. In Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973), aff'd on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296, the Fifth Circuit attempted to outline the types of proof that would satisfy this rather amorphous test. Today, the plurality rejects the Zimmer analysis, holding that the primary, if not the sole, focus of the inquiry must be on the intent of the political body responsible for making the districting decision. While I agree that the Zimmer analysis should be rejected, I do not believe that it is appropriate to focus on the subjective intent of the decisionmakers. 76 In my view, the proper standard is suggested by three characteristics of the gerrymander condemned in Gomillion: (1) the 28-sided configuration was, in the Court's word, "uncouth," that is to say, it was manifestly not the product of a routine or a traditional political decision; (2) it had a significant adverse impact on a minority group; and (3) it was unsupported by any neutral justification and thus was either totally irrational or entirely motivated by a desire to curtail the political strength of the minority. These characteristics suggest that a proper test should focus on the objective effects of the political decision rather than the subjective motivation of the decisionmaker. See United States v. O'Brien, 391 U.S. 367, 384, 88 S.Ct. 1673, 1683, 20 L.Ed.2d 672.11 In this case, if the commission form of government in Mobile were extraordinary, or if it were nothing more than a vestige of history, with no greater justification than the grotesque figure in Gomillion, it would surely violate the Constitution. That conclusion would follow simply from its adverse impact on black voters plus the absence of any legitimate justification for the system, without reference to the subjective intent of the political body that has refused to alter it. 77 Conversely, I am also persuaded that a political decision that affects group voting rights may be valid even if it can be proved that irrational or invidious factors have played some part in its enactment or retention.12 The standard for testing the acceptability of such a decision must take into account the fact that the responsibility for drawing political boundaries is generally committed to the legislative process and that the process inevitably involves a series of compromises among different group interests. If the process is to work it must reflect an awareness of group interests and it must tolerate some attempts to advantage or to disadvantage particular segments of the voting populace. Indeed, the same "group interest" may simultaneously support and oppose a particular boundary change.13 The standard cannot, therefore, be so strict that any evidence of a purpose to disadvantage a bloc of voters will justify a finding of "invidious discrimination"; otherwise, the facts of political life would deny legislatures the right to perform the districting function. Accordingly, a political decision that is supported by valid and articulable justifications cannot be invalid simply because some participants in the decisionmaking process were motivated by a purpose to disadvantage a minority group. 78 The decision to retain the commission form of government in Mobile, Ala., is such a decision. I am persuaded that some support for its retention comes, directly or indirectly, from members of the white majority who are motivated by a desire to make it more difficult for members of the black minority to serve in positions of responsibility in city government. I deplore that motivation and wish that neither it nor any other irrational prejudice played any part in our political processes. But I do not believe otherwise legitimate political choices can be invalidated simply because an irrational or invidious purpose played some part in the decisionmaking process. 79 As Mr. Justice STEWART points out, Mobile's basic election system is the same as that followed by literally thousands of municipalities and other governmental units throughout the Nation. Ante, at 60.14 The fact that these at-large systems characteristically place one or more minority groups at a significant disadvantage in the struggle for political power cannot invalidate all such systems. See Whitcomb v. Chavis, 403 U.S., at 156-160, 91 S.Ct., at 1857-1877. Nor can it be the law that such systems are valid when there is no evidence that they were instituted or maintained for discriminatory reasons, but that they may be selectively condemned on the basis of the subjective motivation or some of their supporters. A contrary view "would spawn endless litigation concerning the multi-member district systems now widely employed in this country," id., at 157, 91 S.Ct., at 1876, and would entangle the judiciary in a voracious political thicket.15 80 In sum, I believe we must accept the choice to retain Mobile's commission form of government as constitutionally permissible even though that choice may well be the product of mixed motivation, some of which is invidious. For these reasons I concur in the judgment of reversal. 81 Mr. Justice BRENNAN, dissenting. 82 I dissent because I agree with Mr. Justice MARSHALL that proof of discriminatory impact is sufficient in these cases. I also dissent because, even accepting the plurality's premise that discriminatory purpose must be shown, I agree with Mr. Justice MARSHALL and Mr. Justice WHITE that the appellees have clearly met that burden. 83 Mr. Justice WHITE, dissenting. 84 In White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), this Court unanimously held the use of multimember districts for the election of state legislators in two counties in Texas violated the Equal Protection Clause of the Fourteenth Amendment because, based on a careful assessment of the totality of the circumstances, they were found to exclude Negroes and Mexican-Americans from effective participation in the political processes in the counties. Without questioning the vitality of White v. Regester and our other decisions dealing with challenges to multimember districts by racial or ethnic groups, the Court today inexplicably rejects a similar holding based on meticulous factual findings and scrupulous application of the principles of these cases by both the District Court and the Court of Appeals. The Court's decision is flatly inconsistent with White v. Regester and it cannot be understood to flow from our recognition in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), that the Equal Protection Clause forbids only purposeful discrimination. Both the District Court and the Court of Appeals properly found that an invidious discriminatory purpose could be inferred from the totality of facts in this case. The Court's cryptic rejection of their conclusions ignores the principles that an invidious discriminatory purpose can be inferred from objective factors of the kind relied on in White v. Regester and that the trial courts are in a special position to make such intensely local appraisals. 85 * Prior to our decision in White v. Regester, we upheld a number of multimember districting schemes against constitutional challenges, but we consistently recognized that such apportionment schemes could constitute invidious discrimination "where the circumstances of a particular case may 'operate to minimize or cancel out the voting strength of racial or political elements of the voting population.' " Whitcomb v. Chavis, 403 U.S. 124, 143, 91 S.Ct. 1858, 1869, 29 L.Ed.2d 363 (1971), quoting from Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966). In Whitcomb v. Chavis, supra, we noted that the fact that the number of members of a particular group who were legislators was not in proportion to the population of the group did not prove invidious discrimination absent evidence and findings that the members of the group had less opportunity than did other persons "to participate in the political processes and to elect legislators of their choice." 403 U.S., at 149, 91 S.Ct., at 1872. 86 Relying on this principle, in White v. Regester we unanimously upheld a District Court's conclusion that the use of multimember districts in Dallas and Bexar Counties in Texas violated the Equal Protection Clause in the face of findings that they excluded Negroes and Mexican-Americans from effective participation in the political processes. With respect to the exclusion of Negroes in Dallas County, "the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes." 412 U.S., at 766, 93 S.Ct., at 2339. The District Court also referred to Texas' majority vote requirement and "place" rule, "neither in themselves improper nor invidious," but which "enhanced the opportunity for racial discrimination" by reducing legislative elections from the multimember district to "a head-to-head contest for each position." Ibid. We deemed more fundamental the District Court's findings that only two Negro state representatives had been elected from Dallas County since Reconstruction and that these were the only two Negroes ever slated by an organization that effectively controlled Democratic Party candidate slating. Id., at 766-767, 93 S.Ct., at 2339. We also noted the District Court's findings that the Democratic Party slating organization was insensitive to the needs and aspirations of the Negro community and that at times it had employed racial campaign tactics to defeat candidates supported by the black community. Based on this evidence, the District Court concluded that the black community generally was "not permitted to enter into the political process in a reliable and meaningful manner." Id., at 767, 93 S.Ct., at 2340. We held that "[t]hese findings and conclusions are sufficient to sustain the District Court's judgment with respect to the Dallas multimember district and, on this record, we have no reason to disturb them." Ibid. 87 With respect to the exclusion of Mexican-Americans from the political process in Bexar County, the District Court referred to the continuing effects of a long history of invidious discrimination against Mexican-Americans in education, employment, economics, health, politics, and other fields. Id., at 768, 93 S.Ct., at 2340. The impact of this discrimination, coupled with a cultural and language barrier, made Mexican-American participation in the political life of Bexar County extremely difficult. Only five Mexican-Americans had represented Bexar County in the Texas Legislature since 1880, and the county's legislative delegation "was insufficiently responsive to Mexican-American interests." Id., at 769, 93 S.Ct., at 2341. "Based on the totality of the circumstances, the District Court evolved its ultimate assessment of the multimember district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county." Ibid. "[F]rom its own special vantage point" the District Court concluded that the multimember district invidiously excluded Mexican-Americans from effective participation in the election of state representatives. We affirmed, noting that we were "not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise." Id., at 769-770, 93 S.Ct., at 2341. II 88 In the instant case the District Court and the Court of Appeals faithfully applied the principles of White v. Regester in assessing whether the maintenance of a system of at-large elections for the selection of Mobile City Commissioners denied Mobile Negroes their Fourteenth and Fifteenth Amendment rights. Scrupulously adhering to our admonition that "[t]he plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question," id., at 766, 93 S.Ct., at 2339, the District Court conducted a detailed factual inquiry into the openness of the candidate selection process to blacks. The court noted that "Mobile blacks were subjected to massive official and private racial discrimination until the Voting Rights Act of 1965" and that "[t]he pervasive effects of past discrimination still substantially affec[t] black political participation." 423 F.Supp. 384, 387 (SD Ala.1976). Although the District Court noted that "[s]ince the Voting Rights Act of 1965, blacks register and vote without hindrance," the court found that "local political processes are not equally open" to blacks. Despite the fact that Negroes constitute more than 35% of the population of Mobile, no Negro has ever been elected to the Mobile City Commission. The plaintiffs introduced extensive evidence of severe racial polarization in voting patterns during the 1960's and 1970's with "white voting for white and black for black if a white is opposed to a black," resulting in the defeat of the black candidate or, if two whites are running, the defeat of the white candidate most identified with blacks. Id., at 388. Regression analyses covering every City Commission race in 1965, 1969, and 1973, both the primary and general election of the county commission in 1968 and 1972, selected school board races in 1962, 1966, 1970, 1972, and 1974, city referendums in 1963 and 1973, and a countywide legislative race in 1969 confirmed the existence of severe bloc voting. Id., at 388-389. Nearly every active candidate for public office testified that because of racial polarization "it is highly unlikely that anytime in the foreseeable future, under the at-large system, . . . a black can be elected against a white." Id., at 388. After single-member districts were created in Mobile County for state legislative elections, "three blacks of the present fourteen member Mobile County delegation have been elected." Id., at 389. Based on the foregoing evidence, the District Court found "that the structure of the at-large election of city commissioners combined with strong racial polarization of Mobile's electorate continues to effectively discourage qualified black citizens from seeking office or being elected thereby denying blacks equal access to the slating or candidate selection process." Ibid. 89 The District Court also reviewed extensive evidence that the City Commissioners elected under the at-large system have not been responsive to the needs of the Negro community. The court found that city officials have been unresponsive to the interests of Mobile Negroes in municipal employment, appointments to boards and committees, and the provision of municipal services in part because of "the political fear of a white backlash vote when black citizens' needs are at stake." Id., at 392. The court also found that there is no clear-cut state policy preference for at-large elections and that past discrimination affecting the ability of Negroes to register and to vote "has helped preclude the effective participation of blacks in the election system today." Id., at 393. The adverse impact of the at-large election system on minorities was found to be enhanced by the large size of the citywide election district, the majority vote requirement, the provision that candidates run for positions by place or number, and the lack of any provision for at-large candidates to run from particular geographical subdistricts. 90 After concluding its extensive findings of fact, the District Court addressed the question of the effect of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), on the White v. Regester standards. The court concluded that the requirement that a facially neutral statute involve purposeful discrimination before a violation of the Equal Protection Clause can be established was not inconsistent with White v. Regester in light of the recognition in Washington v. Davis, supra, at 241-242, 96 S.Ct., at 2048, that the discriminatory purpose may often be inferred from the totality of the relevant facts, including the discriminatory impact of the statute. 423 F.Supp., at 398. After noting that "whenever a redistricting bill of any type is proposed by a county delegation member, a major concern has centered around how many, if any, blacks would be elected," id., at 397, the District Court concluded that there was "a present purpose to dilute the black vote . . . RESULTING FROM INTENTIONAL STATE LEGISLATIVE INACTION . . . ." ID., at 398. Based on an "exhaustive analysis of the evidence in the record," the court held that "[t]he plaintiffs have met the burden cast in White and Whitcomb," and that "the multi-member at-large election of Mobile City Commissioners . . . results in an unconstitutional dilution of black voting strength." Id., at 402. 91 The Court of Appeals affirmed the District Court's judgment in one of four consolidated "dilution" cases decided on the same day. Bolden v. Mobile, 571 F.2d 238 (CA5 1978); Nevett v. Sides, 571 F.2d 209 (CA5 1978) (Nevett II ); Blacks United for Lasting Leadership, Inc. v. Shreveport, 571 F.2d 248 (CA5 1978); Thomasville Branch of NAACP v. Thomas County, Georgia, 571 F.2d 257 (CA5 1978). In the lead case of Nevett II, supra, the Court of Appeals held that under Washington v. Davis, supra, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), "a showing of racially motivated discrimination is a necessary element" for a successful claim of unconstitutional voting dilution under either the Fourteenth or Fifteenth Amendment. 571 F.2d, at 219. The court concluded that the standards for proving unconstitutional voting dilution, outlined in White v. Regester were consistent with the requirement that purposeful discrimination be shown because they focus on factors that go beyond a simple showing that minorities are not represented in proportion to their numbers in the general population. 571 F.2d, at 219-220, n. 13, 222-224. 92 In its decision in the instant case the Court of Appeals reviewed the District Court's findings of fact, found them not to be clearly erroneous and held that they "compel the inference that [Mobile's at-large] system has been maintained with the purpose of diluting the black vote, thus supplying the element of intent necessary to establish a violation of the fourteenth amendment, Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 [97 S.Ct. 555, 50 L.Ed.2d 450] (1977); Washington v. Davis, 426 U.S. 229 [96 S.Ct. 2040, 48 L.Ed.2d 597] (1976), and the fifteenth amendment, Wright v. Rockefeller, 376 U.S. 52 [84 S.Ct. 603, 11 L.Ed.2d 512] (1964)." Id., at 245. The court observed that the District Court's "finding that the legislature was acutely conscious of the racial consequences of its districting policies," coupled with the attempt to assign different functions to each of the three City Commissioners "to lock in the at-large feature of the scheme," constituted "direct evidence of the intent behind the maintenance of the at-large plan." Id., at 246. The Court of Appeals concluded that "the district court has properly conducted the 'sensitive inquiry into such circumstantial and direct evidence of intent as may be available' that a court must undertake in '[d]etermining whether invidious discriminatory purpose was a motivating factor' in the maintenance or enactment of a districting plan." Ibid., quoting Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 266, 97 S.Ct., at 2060. III 93 A plurality of the Court today agrees with the courts below that maintenance of Mobile's at-large system for election of City Commissioners violates the Fourteenth and Fifteenth Amendments only if it is motivated by a racially discriminatory purpose. The plurality also apparently reaffirms the vitality of White v. Regester and Whitcomb v. Chavis, which established the standards for determining whether at-large election systems are unconstitutionally discriminatory. The plurality nonetheless casts aside the meticulous application of the principles of these cases by both the District Court and the Court of Appeals by concluding that the evidence they relied upon "fell far short of showing" purposeful discrimination. 94 The plurality erroneously suggests that the District Court erred by considering the factors articulated by the Court of Appeals in Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973), to determine whether purposeful discrimination has been shown. This remarkable suggestion ignores the facts that Zimmer articulated the very factors deemed relevant by White v. Regester and Whitcomb v. Chavis —a lack of minority access to the candidate selection process, unresponsiveness of elected officials to minority interests, a history of discrimination, majority vote requirements, provisions that candidates run for positions by place or number, the lack of any provision for at-large candidates to run from particular geographical subdistricts—and that both the District Court and the Court of Appeals considered these factors with the recognition that they are relevant only with respect to the question whether purposeful discrimination can be inferred. 95 Although the plurality does acknowledge that "the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose," it concludes that the evidence relied upon by the court below was "most assuredly insufficient to prove an unconstitutionally discriminatory purpose in the present case." The plurality apparently bases this conclusion on the fact that there are no official obstacles barring Negroes from registering, voting, and running for office, coupled with its conclusion that none of the factors relied upon by the courts below would alone be sufficient to support an inference of purposeful discrimination. The absence of official obstacles to registration, voting, and running for office heretofore has never been deemed to insulate an electoral system from attack under the Fourteenth and Fifteenth Amendments. In White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), there was no evidence that Negroes faced official obstacles to registration, voting, and running for office, yet we upheld a finding that they had been excluded from effective participation in the political process in violation of the Equal Protection Clause because a multimember districting scheme, in the context of racial voting at the polls, was being used invidiously to prevent Negroes from being elected to public office. In Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), and Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), we invalidated electoral systems under the Fifteen Amendment not because they erected official obstacles in the path of Negroes registering, voting, or running for office, but because they were used effectively to deprive the Negro vote of any value. Thus, even though Mobile's Negro community may register and vote without hindrance, the system of at-large election of City Commissioners may violate the Fourteenth and Fifteenth Amendments if it is used purposefully to exclude Negroes from the political process. 96 In conducting "an intensely local appraisal of the design and impact" of the at-large election scheme, White v. Regester, supra, at 769, 93 S.Ct., at 2341, the District Court's decision was fully consistent with our recognition in Washington v. Davis, 426 U.S., at 242, 96 S.Ct., at 2048-49, that "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another." Although the totality of the facts relied upon by the District Court to support its inference of purposeful discrimination is even more compelling than that present in White v. Regester, the plurality today rejects the inference of purposeful discrimination apparently because each of the factors relied upon by the courts below is alone insufficient to support the inference. The plurality states that the "fact [that Negro candidates have been defeated] alone does not work a constitutional deprivation," that evidence of the unresponsiveness of elected officials "is relevant only as the most tenuous and circumstantial evidence," that "the substantial history of official racial discrimination . . . [is] of limited help," and that the features of the electoral system that enhance the disadvantages faced by a voting minority "are far from proof that the at-large electoral scheme represents purposeful discrimination." By viewing each of the factors relied upon below in isolation, and ignoring the fact that racial bloc voting at the polls makes it impossible to elect a black commissioner under the at-large system, the plurality rejects the "totality of the circumstances" approach we endorsed in White v. Regester, supra, at 766-770, 93 S.Ct., at 2339-2341; Washington v. Davis, supra, at 241-242, 96 S.Ct., at 2048-2049, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 266, 97 S.Ct., at 563, and leaves the courts below adrift on uncharted seas with respect to how to proceed on remand. 97 Because I believe that the findings of the District Court amply support an inference of purposeful discrimination in violation of the Fourteenth and Fifteenth Amendments, I respectfully dissent. 98 Mr. Justice MARSHALL, dissenting. 99 The American ideal of political equality, conceived in the earliest days of our colonial existence and fostered by the egalitarian language of the Declaration of Independence, could not forever tolerate the limitation of the right to vote to white propertied males. Our Constitution has been amended six times in the movement toward a democracy for more than the few,1 and this Court has interpreted the Fourteenth Amendment to provide that "a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction," Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (1972). The Court's decision today is in a different spirit. Indeed, a plurality of the Court concludes that, in the absence of proof of intentional discrimination by the State, the right to vote provides the politically powerless with nothing more than the right to cast meaningless ballots. 100 The District Court in both of these cases found that the challenged multimember districting schemes unconstitutionally diluted the Negro vote. These factual findings were upheld by the Court of Appeals, and the plurality does not question them. Instead, the plurality concludes that districting schemes do not violate the Equal Protection Clause unless it is proved that they were enacted or maintained for the purpose of minimizing or canceling out the voting potential of a racial minority. The plurality would require plaintiffs in vote-dilution cases to meet the stringent burden of establishing discriminatory intent within the meaning of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); and Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). In my view, our vote-dilution decisions require only a showing of discriminatory impact to justify the invalidation of a multimember districting scheme, and, because they are premised on the fundamental interest in voting protected by the Fourteenth Amendment, the discriminatory-impact standard adopted by them is unaffected by Washington v. Davis, supra, and its progeny. Furthermore, an intent requirement is inconsistent with the protection against denial or abridgment of the vote on account of race embodied in the Fifteenth Amendment and in § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973.2 Even if, however, proof of discriminatory intent were necessary to support a vote-dilution claim, I would impose upon the plaintiffs a standard of proof less rigid than that provided by Personnel Administrator of Mass. v. Feeney, supra. 101 * The Court does not dispute the proposition that multimember districting can have the effect of submerging electoral minorities and overrepresenting electoral majorities.3 It is for this reason that we developed a strong preference for single-member districting in court-ordered reapportionment plans. See ante, at 66, n. 12, 100 S.Ct. at 1499, n. 12. Furthermore, and more important for present purposes, we decided a series of vote-dilution cases under the Fourteenth Amendment that were designed to protect electoral minorities from precisely the combination of electoral laws and historical and social factors found in the present cases.4 In my view, the plurality's treatment of these cases is fanciful. Although we have held that multimember districts are not unconstitutional per se, see ante, at 66, 100 S.Ct. at 1499, there is simply no basis for the plurality's conclusion that under our prior cases proof of discriminatory intent is a necessary condition for the invalidation of multimember districting. 102 In Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965), the first vote-dilution case to reach this Court, we stated explicitly that such a claim could rest on either discriminatory purpose or effect: 103 "It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." Id., at 439, 85 S.Ct., at 501 (emphasis added). 104 We reiterated these words in Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), interpreted them as the correct test to apply to vote-dilution claims, and described the standard as one involving "invidious effect," id., at 88, 86 S.Ct., at 1294. We then held that the plaintiffs had failed to meet their burden of proof: 105 "[T]he demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record. . . . That demonstration was not made here. In relying on conjecture as to the effects of multi-member districting rather than demonstrated fact, the court acted in a manner more appropriate to the body responsible for drawing up the districting plan. Speculations do not supply evidence that the multi-member districting was designed to have or had the invidious effect necessary to a judgment of the unconstitutionality of the districting." Id., at 88-89, 86 S.Ct., at 1294-1295 (emphasis added) (footnote omitted). 106 It could not be plainer that the Court in Burns considered discriminatory effect a sufficient condition for invalidating a multimember districting plan. 107 In Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), we again repeated and applied the Fortson standard, 403 U.S., at 143, 144, 91 S.Ct., at 1869, but determined that the Negro community's lack of success at the polls was the result of partisan politics, not racial vote dilution. Id., at 150-155, 91 S.Ct., at 1872-1875. The Court stressed that both the Democratic and Republican Parties had nominated Negroes, and several had been elected. Negro candidates lost only when their entire party slate went down to defeat. Id., at 150, nn. 29-30, 91 S.Ct., at 1872, nn. 29-30, 152-153, 91 S.Ct., at 1873. In addition, the Court was impressed that there was no finding that officials had been unresponsive to Negro concerns. Id., at 152, n. 32, 155, 91 S.Ct., at 1875, n. 32.5 108 More recently, in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), we invalidated the challenged multimember districting plans because their characteristics, when combined with historical and social factors, had the discriminatory effect of denying the plaintiff Negroes and Mexican-Americans equal access to the political process. Id., at 765-770, 93 S.Ct., at 2339-2341. We stated that 109 "it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." Id., at 765-766, 93 S.Ct., at 2339. 110 We held that the three-judge District Court had properly applied this standard in invalidating the multimember districting schemes in the Texas counties of Dallas and Bexar. The District Court had determined that the characteristics of the challenged electoral systems—multimember districts, a majority-vote requirement for nomination in a primary election, and a rule mandating that a candidate running for a position in a multimember district must run for a specified "place" on the ticket—though "neither in themselves improper nor invidious," reduced the electoral influence of Negroes and Mexican-Americans. Id., at 766, 93 S.Ct., at 2340.6 The District Court identified a number of social and historical factors that, when combined with the Texas electoral structure, resulted in vote dilution: (1) a history of official racial discrimination in Texas, including discrimination inhibiting the registration, casting of ballots, and political participation of Negroes; (2) proof that minorities were still suffering the effects of past discrimination; (3) a history of gross underrepresentation of minority interests; (4) proof of official insensitivity to the needs of minority citizens, whose votes were not needed by those in power; (5) the recent use of racial campaign tactics; and (6) a cultural and language barrier inhibiting the participation of Mexican-Americans. Id., at 766-770, 93 S.Ct., at 2339-2341. Based "on the totality of the circumstances," we affirmed the District Court's conclusion that the use of multimember districts excluded the plaintiffs "from effective participation in political life." Id., at 769, 93 S.Ct., at 2341.7 111 It is apparent that a showing of discriminatory intent in the creation or maintenance of multimember districts is as unnecessary after White as it was under our earlier vote-dilution decisions. Under this line of cases, an electoral districting plan is invalid if it has the effect of affording an electoral minority "less opportunity than . . . other residents in the district to participate in the political processes and to elect legislators of their choice," id., at 766, 93 S.Ct., at 2339. It is also apparent that the Court in White considered equal access to the political process as meaning more than merely allowing the minority the opportunity to vote. White stands for the proposition that an electoral system may not relegate an electoral minority to political impotence by diminishing the importance of its vote. The plurality's approach requiring proof of discriminatory purpose in the present cases is, then, squarely contrary to White and its predecessors.8 B 112 The plurality fails to apply the discriminatory-effect standard of White v. Regester because that approach conflicts with what the plurality takes to be an elementary principle of law. "[O]nly if there is purposeful discrimination," announces the plurality, "can there be a violation of the Equal Protection Clause of the Fourteenth Amendment." Ante, at 66, 100 S.Ct., at 1499. That proposition is plainly overbroad. It fails to distinguish between two distinct lines of equal protection decisions: those involving suspect classifications, and those involving fundamental rights. 113 We have long recognized that under the Equal Protection Clause classifications based on race are "constitutionally suspect," Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954), and are subject to the "most rigid scrutiny," Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944), regardless of whether they infringe on an independently protected constitutional right. Cf. University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Under Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), a showing of discriminatory purpose is necessary to impose strict scrutiny on facially neutral classifications having a racially discriminatory impact. Perhaps because the plaintiffs in the present cases are Negro, the plurality assumes that their vote-dilution claims are premised on the suspect-classification branch of our equal protection cases, and that under Washington v. Davis, supra, they are required to prove discriminatory intent. That assumption fails to recognize that our vote-dilution decisions are rooted in a different strand of equal protection jurisprudence. 114 Under the Equal Protection Clause, if a classification "impinges upon a fundamental right explicitly or implicitly protected by the Constitution, . . . strict judicial scrutiny" is required, San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), regardless of whether the infringement was intentional.9 As I will explain, our cases recognize a fundamental right to equal electoral participation that encompasses protection against vote dilution. Proof of discriminatory purpose is, therefore, not required to support a claim of vote dilution.10 The plurality's erroneous conclusion to the contrary is the result of a failure to recognize the central distinction between White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Washington v. Davis, supra : the former involved an infringement of a constitutionally protected right, while the latter dealt with a claim of racially discriminatory distribution of an interest to which no citizen has a constitutional entitlement.11 115 Nearly a century ago, the Court recognized the elementary proposition upon which our structure of civil rights is based: "[T]he political franchise of voting is . . . a fundamental political right, because preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886). We reiterated that theme in our landmark decision in Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964), and stated that, because "the right of suffrage is a fundamental matter in a free and democratic society[,] . . . any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Ibid. We realized that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Id., at 555, 84 S.Ct., at 1378. Accordingly, we recognized that the Equal Protection Clause protects "[t]he right of a citizen to equal representation and to have his vote weighted equally with those of all other citizens." Id., at 576, 84 S.Ct., at 1389. See also Wes ¢s¢s116¢s v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481 (1964); Gray v. Sanders, 372 U.S. 368, 379-380, 83 S.Ct. 801, 807-808, 9 L.Ed.2d 821 (1963).12 116 Reynolds v. Sims and its progeny13 focused solely on the discriminatory effects of malapportionment. They recognize that, when population figures for the representational districts of a legislature are not similar, the votes of citizens in larger districts do not carry as much weight in the legislature as do votes cast by citizens in smaller districts. The equal protection problem attacked by the "one person, one vote" principle is, then, one of vote dilution: under Reynolds, each citizen must have an "equally effective voice" in the election of representatives. Reynolds v. Sims, supra, 377 U.S., at 565, 84 S.Ct., at 1383. In the present cases, the alleged vote dilution, though caused by the combined effects of the electoral structure and social and historical factors rather than by unequal population distribution, is analytically the same concept: the unjustified abridgment of a fundamental right.14 It follows, then, that a showing of discriminatory intent is just as unnecessary under the vote-dilution approach adopted in Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 1401 (1965), and applied in White v. Regester, supra, as it is under our reapportionment cases.15 117 Indeed, our vote-dilution cases have explicitly acknowledged that they are premised on the infringement of a fundamental right, not on the Equal Protection Clause's prohibition of racial discrimination. Our first vote-dilution decision, Fortson v. Dorsey, supra, involved a 1962 Georgia reapportionment statute that allocated the 54 seats of the Georgia Senate among the State's 159 counties. Thirty-three of the senatorial districts were made up of from one to eight counties each, and were single-member districts. The remaining 21 districts were allotted among the 7 most populous counties, with each county containing at least 2 districts and electing all of its senators by countywide vote. The plaintiffs, who were registered voters residing in two of the multidistrict counties,16 argued that the apportionment plan on its face violated the Equal Protection Clause because countywide voting in the seven multidistrict counties denied their residents a vote equal to that of voters residing in single-member constituencies.S17 We were unconvinced that the plan operated to dilute any Georgian's vote, and therefore upheld the facial validity of the scheme. We cautioned, however, that the Equal Protection Clause would not tolerate a multimember districting plan that "designedly or otherwise, . . . operate[d] to minimize or cancel out the voting strength of racial or political elements of the voting population." 379 U.S., at 439, 85 S.Ct., at 501 (emphasis added). 118 The approach to vote dilution adopted in Fortson plainly consisted of a fundamental-rights analysis. If the Court had believed that the equal protection problem with alleged vote dilution was one of racial discrimination and not abridgment of the right to vote, it would not have accorded standing to the plaintiffs, who were simply registered voters of Georgia alleging that the state apportionment plan, as a theoretical matter, diluted their voting strength because of where they lived. To the contrary, we did not question their standing, and held against them solely because we found unpersuasive their claim on the merits. The Court did not reach this result by inadvertence; rather, we explicitly recognized that we had adopted a fundamental-rights approach when we stated that the Equal Protection Clause protected the voting strength of political as well as racial groups. 119 Until today, this Court had never deviated from this principle. We reiterated that our vote-dilution doctrine protects political groups in addition to racial groups in Burns v. Richardson, 384 U.S., at 88, 86 S.Ct., at 1294, where we allowed a general class of qualified voters to assert such a vote-dilution claim. In Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), we again explicitly recognized that political groups could raise such claims, id., at 143, 144, 91 S.Ct., at 1869. In White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), the plaintiffs were Negroes and Mexican-Americans, and accordingly the Court had no reason to discuss whether non-minority plaintiffs could assert claims of vote dilution.18 In a companion case to White, however, we again recognized that "political elements" were protected against vote dilution. Gaffney v. Cummings, 412 U.S. 735, 751, 93 S.Ct. 2321, 2330, 37 L.Ed.2d 298 (1973). Two years later, in Dallas County v. Reese, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975) (per curiam ), we accorded standing to urban dwellers alleging vote dilution as to the election of the county commission and stated that multimember districting is unconstitutional if it "in fact operates impermissibly to dilute the voting strength of an identifiable element of the voting population." Id., at 480, 95 S.Ct., at 1708 (emphasis added). And in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), the plurality opinion of Mr. Justice WHITE stated that districting plans were subject to attack if they diluted the vote of "racial or political groups." Id., at 167, 97 S.Ct., at 1010 (emphasis in original).19 120 Our vote-dilution decisions, then, involve the fundamental-interest branch, rather than the antidiscrimination branch, of our jurisprudence under the Equal Protection Clause. They recognize a substantive constitutional right to participate on an equal basis in the electoral process that cannot be denied or diminished for any reason, racial or otherwise, lacking quite substantial justification. They are premised on a rationale wholly apart from that underlying Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). That decision involved application of a different equal protection principle, the prohibition on racial discrimination in the governmental distribution of interests to which citizens have no constitutional entitlement.20 Whatever may be the merits of applying motivational analysis to the allocation of constitutionally gratuitous benefits, that approach is completely misplaced where, as here, it is applied to the distribution of a constitutionally protected interest.21 121 Washington v. Davis, then, in no way alters the discriminatory-impact test developed in Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965), and applied in White v. Regester, supra, to evaluate claims of dilution of the fundamental right to vote. In my view, that test is now, and always has been, the proper method of safeguarding against inequitable distribution of political influence. 122 The plurality's response is that my approach amounts to nothing less than a constitutional requirement of proportional representation for groups. See ante, at 75-80, 100 S.Ct., at 1504-1507. That assertion amounts to nothing more than a red herring: I explicitly reject the notion that the Constitution contains any such requirement. See n. 7, supra. The constitutional protection against vote dilution found in our prior cases does not extend to those situations in which a group has merely failed to elect representatives in proportion to its share of the population. To prove unconstitutional vote dilution, the group is also required to carry the far more onerous burden of demonstrating that it has been effectively fenced out of the political process. See ibid. Typical of the plurality's mischaracterization of my position is its assertion that I would provide protection against vote dilution for "every 'political group,' or at least every such group that is in the minority." Ante, at 75, 100 S.Ct., at 1504. The vote-dilution doctrine can logically apply only to groups whose electoral discreteness and insularity allow dominant political factions to ignore them. See nn. 7 and 19, supra. In short, the distinction between a requirement of proportional representation and the discriminatory-effect test I espouse is by no means a difficult one, and it is hard for me to understand why the plurality insists on ignoring it. 123 The plaintiffs in No. 77-1844 proved that no Negro had ever been elected to the Mobile City Commission, despite the fact that Negroes constitute about one-third of the electorate, and that the persistence of severe racial bloc voting made it highly unlikely that any Negro could be elected at large in the foreseeable future. 423 F.Supp. 384, 387-389 (SD Ala.1976). Contrary to the plurality's contention, see ante, at 75-76, 100 S.Ct., at 1504, however, I do not find unconstitutional vote dilution in this case simply because of that showing. The plaintiffs convinced the District Court that Mobile Negroes were unable to use alternative avenues of political influence. They showed that Mobile Negroes still suffered pervasive present effects of massive historical, official and private discrimination, and that the City Commission had been quite unresponsive to the needs of the minority community. The City of Mobile has been guilty of such pervasive racial discrimination in hiring employees that extensive intervention by the Federal District Court has been required. 423 F.Supp., at 389, 400. Negroes are grossly underrepresented on city boards and committees. Id., at 389-390. The city's distribution of public services is racially discriminatory. Id., at 390-391. City officials and police were largely unmoved by Negro complaints about police brutality and a "mock lynching." Id., at 392. The District Court concluded that "[t]his sluggish and timid response is another manifestation of the low priority given to the needs of the black citizens and of the [commissioners'] political fear of a white backlash vote when black citizens' needs are at stake." Ibid. See also the dissenting opinion of my Brother WHITE, ante, p. 94, 100 S.Ct., p. 1514. 124 A requirement of proportional representation would indeed transform this Court into a "super-legislature," ante, at 76, 100 S.Ct., at 1505, and would create the risk that some groups would receive an undeserved windfall of political influence. In contrast, the protection against vote dilution recognized by our prior cases serves as a minimally intrusive guarantee of political survival for a discrete political minority that is effectively locked out of governmental decisionmaking processes.22 So understood, the doctrine hardly " 'create[s] substantive constitutional rights in the name of guaranteeing equal protection of the laws,' " ibid., p. 76, 100 S.Ct., at 1504, quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S., at 33, 93 S.Ct., at 1296. Rather, the doctrine is a simple reflection of the basic principle that the Equal Protection Clause protects "[t]he right of a citizen to equal representation and to have his vote weighted equally with those of all other citizens." Reynolds v. Sims, 377 U.S., at 576, 84 S.Ct., at 1389.23 II 125 Section 1 of the Fifteenth Amendment provides: 126 "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude." 127 Today the plurality gives short shrift to the argument that proof of discriminatory intent is not a necessary condition to relief under this Amendment. See ante, at 61-65, 100 S.Ct., at 1497-1499.24 I have examined this issue in another context and reached the contrary result. Beer v. United States, 425 U.S. 130, 146-149, and nn. 3-5, 96 S.Ct. 1357, 1366, 1367, and nn. 3-5, 47 L.Ed.2d 629 (1976) (dissenting opinion). I continue to believe that "a showing of purpose or of effect is alone sufficient to demonstrate unconstitutionality," id., at 149, n. 5, 96 S.Ct., at 1368, n. 5 and wish to explicate further why I find this standard appropriate for Fifteenth Amendment claims. First, however, it is necessary to address the plurality's apparent suggestion that the Fifteenth Amendment protects against only denial, and not dilution, of the vote.25 128 The Fifteenth Amendment does not confer an absolute right to vote. See ante, at 62, 100 S.Ct., at 1497. By providing that the right to vote cannot be discriminatorily "denied or abridged," however, the Amendment assuredly strikes down the diminution as well as the outright denial of the exercise of the franchise. An interpretation holding that the Amendment reaches only complete abrogation of the vote would render the Amendment essentially useless, since it is no difficult task to imagine schemes in which the Negro's marking of the ballot is a meaningless exercise. 129 The Court has long understood that the right to vote encompasses protection against vote dilution. "[T]he right to have one's vote counted" is of the same importance as "the right to put a ballot in a box." United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 905, 59 L.Ed. 1355 (1915). See United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005 (1902); Wiley v. Sinkler, 179 U.S. 58, 21 S.Ct. 17, 45 L.Ed. 84 (1900); Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884). The right to vote is protected against the diluting effect of ballot-box stuffing. United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341 (1944); Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880). Indeed, this Court has explicitly recognized that the Fifteenth Amendment protects against vote dilution. In Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), and Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), the Negro plaintiffs did not question their access to the ballot for general elections. Instead they argued, and the Court recognized, that the value of their votes had been diluted by their exclusion from participation in primary elections and in the slating of candidates by political parties. The Court's struggles with the concept of "state action" in those decisions were necessarily premised on the understanding that vote dilution was a claim cognizable under the Fifteenth Amendment. 130 Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), recognized that an allegation of vote dilution resulting from the drawing of district lines stated a claim under the Fifteenth Amendment. The plaintiffs in that case argued that congressional districting in New York violated the Fifteenth Amendment because district lines had been drawn in a racially discriminatory fashion. Each plaintiff had access to the ballot; their complaint was that because of intentional discrimination they resided in a district with population characteristics that had the effect of diluting the weight of their votes. The Court treated this claim as cognizable under the Fifteenth Amendment. More recently, in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), we again treated an allegation of vote dilution arising from a redistricting scheme as stating a claim under the Fifteenth Amendment. See id., at 155, 161-162, 165-168, 97 S.Ct., at 1007, 1008, 1009-1011 (opinion of WHITE, J.). Indeed, in that case Mr. Justice STEWART found no Fifteenth Amendment violation in part because the plaintiffs had failed to prove "that the redistricting scheme was employed . . . to minimize or cancel out the voting strength of a minority class or interest; or otherwise to impair or burden the opportunity of affected persons to participate in the political process." Id., at 179, 97 S.Ct., at 1017 (STEWART, J., joined by POWELL, J., concurring in judgment) (citing, e. g., White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Wright v. Rockefeller, supra. See also Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). 131 It is plain, then, that the Fifteenth Amendment shares the concept of vote dilution developed in such Fourteenth Amendment decisions as Reynolds v. Sims, 377 U.S 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and Fortson v. Dorsey, supra. In fact, under the Court's unified view of the protections of the right to vote accorded by disparate portions of the Constitution, the concept of vote dilution is a core principle of the Seventeenth and Nineteenth Amendments as well as the Fourteenth and Fifteenth: 132 "The Fifteenth amendment prohibits a State from denying or abridging a Negro's right to vote. The Nineteenth amendment does the same for women. If a State in a statewide election weighted the male vote more heavily than the female vote or the white vote more heavily than the Negro vote, none could successfully contend that that discrimination was allowable. See Terry v. Adams, 345 U.S. 461 [73 S.Ct. 809, 97 L.Ed. 1152]. . . . Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. 133 * * * * * 134 "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote." Gray v. Sanders, 372 U.S., at 379, 381, 83 S.Ct., at 808, 809. 135 The plurality's suggestion that the Fifteenth Amendment reaches only outright denial of the ballot is wholly inconsistent not only with our prior decisions, but also with the gloss the plurality would place upon the Fourteenth Amendment's protection against vote dilution. As I explained in Part I, supra, I strongly disagree with the plurality's conclusion that our Fourteenth Amendment vote-dilution decisions have been based upon the Equal Protection Clause's prohibition of racial discrimination. Be that as it may, the plurality at least does not dispute that the Fourteenth Amendment's language—that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws"—protects against dilution, as well as outright denial, of the right to vote on racial grounds, even though the Amendment does not mention any right to vote and speaks only of the denial, and not the diminution, of rights. Yet, when the plurality construes the language of the Fifteenth Amendment which explicitly acknowledges the right to vote and prohibits its denial or abridgment on account of race—it seemingly would accord protection against only the absolute abrogation of the ballot. 136 An interpretation of the Fifteenth Amendment limiting its prohibitions to the outright denial of the ballot would convert the words of the Amendment into language illusory in symbol and hollow in substance. Surely today's decision should not be read as endorsing that interpretation.26 B 137 The plurality concludes that our prior decisions establish the principle that proof of discriminatory intent is a necessary element of a Fifteenth Amendment claim.27 In contrast, I continue to adhere to my conclusion in Beer v. United States, 425 U.S. 148, n. 4, 96 S.Ct., at 1367, n. 4 (dissenting opinion), that "[t]he Court's decisions relating to the relevance of purpose-and/or-effect analysis in testing the constitutionality of legislative enactments are somewhat less than a seamless web." As I there explained, at various times the Court's decisions have seemed to adopt three inconsistent approaches: (1) that purpose alone is the test for unconstitutionality; (2) that effect alone is the test; and (3) that purpose or effect, either alone or in combination, is sufficient to show unconstitutionality. Ibid. In my view, our Fifteenth Amendment jurisprudence on the necessity of proof of discriminatory purpose is no less unsettled than was our approach to the importance of such proof in Fourteenth Amendment racial discrimination cases prior to Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). What is called for in the present cases is a fresh consideration—similar to our inquiry in Washington v. Davis, supra, with regard to Fourteenth Amendment discrimination claims—of whether proof of discriminatory purpose is necessary to establish a claim under the Fifteenth Amendment. I will first justify my conclusion that our Fifteenth Amendment precedents do not control the outcome of this issue, and then turn to an examination of how the question should be resolved. 138 * The plurality cites Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964); Lassiter v. Northampton Election Bd., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959); and Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939), as holding that proof of discriminatory purpose is necessary to support a Fifteenth Amendment claim. To me, these decisions indicate confusion, not resolution of this issue. As the plurality suggests, ante, at 62, 100 S.Ct., at 1497, the Court in Guinn v. United States, supra, did examine the purpose of a "grandfather clause" in the course of invalidating it. Yet 24 years later, in Lane v. Wilson, supra, at 277, 59 S.Ct., at 876, the Court struck down a more sophisticated exclusionary scheme because it "operated unfairly" against Negroes. In accord with the prevailing doctrine of the time, see Arizona v. California, 283 U.S. 423, 455, and n. 7, 51 S.Ct. 522, and n. 7, 75 L.Ed. 1154 (1931), the Court in Lane seemingly did not question the motives of public officials. 139 In upholding the use of a literacy test for voters in Lassiter v. Northampton Election Bd., supra, the Court apparently concluded that the plaintiff had failed to prove either discriminatory purpose or effect. Gomillion v. Lightfoot, supra, can be read as turning on proof of discriminatory motive, but the Court also stressed that the challenged redrawing of municipal boundaries had the "essential inevitable effect" of removing Negro voters from the city, id., 364 U.S., at 341, 81 S.Ct., at 127, and that "the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights," id., at 347, 81 S.Ct., at 130. Finally, in Wright v. Rockefeller, supra, the plaintiffs alleged only purposeful discriminatory redistricting, and therefore the Court had no reason to consider whether proof of discriminatory effect would satisfy the Fifteenth Amendment.28 140 The plurality ignores cases suggesting that discriminatory purpose is not necessary to support a Fifteenth Amendment claim. In Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), a case in which no majority opinion was issued, three Justices approvingly discussed two decisions of the United States Court of Appeals for the Fourth Circuit29 holding "that no election machinery could be sustained if its purpose or effect was to deny Negroes on account of their race an effective voice in the governmental affairs of their country, state, or community." Id., at 466, 73 S.Ct., at 812 (opinion of Black, J., joined by Douglas and Burton, JJ.) (emphasis added). More recently, in rejecting a First Amendment challenge to a federal statute providing criminal penalties for knowing destruction of a Selective Service registration certificate, the Court in United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968), stated that "[i]t is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." The Court in O'Brien, supra, at 385, 88 S.Ct., at 1683, interpreted Gomillion v. Lightfoot, supra, as turning on the discriminatory effect, and not the alleged discriminatory purpose, of the challenged redrawing of municipal boundaries. Three years later, in Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940, 1944-1945, 29 L.Ed.2d 438 (1971), the Court relied on O'Brien to support its refusal to inquire whether a city had closed its swimming pools to avoid racial integration. As in O'Brien, the Court in Palmer, supra, at 225, 91 S.Ct., at 1945, interpreted Gomillion v. Lightfoot as focusing "on the actual effect" of the municipal boundary change, and not upon what motivated the city to redraw its borders. See also Wright v. Council of City of Emporia, 407 U.S. 451, 461-462, 92 S.Ct. 2196, 2202, 2203, 33 L.Ed.2d 51 (1972). 141 In holding that racial discrimination claims under the Equal Protection Clause must be supported by proof of discriminatory intent, the Court in Washington v. Davis, supra, signaled some movement away from the doctrine that such proof is irrelevant to constitutional adjudication. Although the Court, 426 U.S., at 242-244 and n. 11, 96 S.Ct., at 2048-2050, and n. 11, attempted mightily to distinguish Palmer v. Thompson, supra, its decision was in fact based upon a judgment that, in light of modern circumstances, the Equal Protection Clause's ban on racial discrimination in the distribution of constitutional gratuities should be interpreted as prohibiting only intentional official discrimination.30 142 These vacillations in our approach to the relevance of discriminatory purpose belie the plurality's determination that our prior decisions require such proof to support Fifteenth Amendment claims. To the contrary, the Court today is in the same unsettled position with regard to the Fifteenth Amendment as it was four years ago in Washington v. Davis, supra, regarding the Fourteenth Amendment's prohibition of racial discrimination. The absence of old answers mandates a new inquiry. 2 143 The Court in Washington v. Davis required a showing of discriminatory purpose to support racial discrimination claims largely because it feared that a standard based solely on disproportionate impact would unduly interfere with the far ranging governmental distribution of constitutional gratuities.31 Underlying the Court's decision was a determination that, since the Constitution does not entitle any person to such governmental benefits, courts should accord discretion to those officials who decide how the government shall allocate its scarce resources. If the plaintiff proved only that governmental distribution of constitutional gratuities had a disproportionate effect on a racial minority, the Court was willing to presume that the officials who approved the allocation scheme either had made an honest error or had foreseen that the decision would have a discriminatory impact and had found persuasive, legitimate reasons for imposing it nonetheless. These assumptions about the good faith of officials allowed the Court to conclude that, standing alone, a showing that a governmental policy had a racially discriminatory impact did not indicate that the affected minority had suffered the stigma, frustration, and unjust treatment prohibited under the suspect-classification branch of our equal protection jurisprudence. 144 Such judicial deference to official decisionmaking has no place under the Fifteenth Amendment. Section 1 of that Amendment differs from the Fourteenth Amendment's prohibition on racial discrimination in two crucial respects: it explicitly recognizes the right to vote free of hindrances related to race, and it sweeps no further. In my view, these distinctions justify the conclusion that proof of racially discriminatory impact should be sufficient to support a claim under the Fifteenth Amendment. The right to vote is of such fundamental importance in the constitutional scheme that the Fifteenth Amendment's command that it shall not be "abridged" on account of race must be interpreted as providing that the votes of citizens of all races shall be of substantially equal weight. Furthermore, a disproportionate-impact test under the Fifteenth Amendment would not lead to constant judicial intrusion into the process of official decisionmaking. Rather, the standard would reach only those decisions having a discriminatory effect upon the minority's vote. The Fifteenth Amendment cannot tolerate that kind of decision, even if made in good faith, because the Amendment grants racial minorities the full enjoyment of the right to vote, not simply protection against the unfairness of intentional vote dilution along racial lines.32 145 In addition, it is beyond dispute that a standard based solely upon the motives of official decision-makers creates significant problems of proof for plaintiffs and forces the inquiring court to undertake an unguided, tortious look into the minds of officials in the hope of guessing why certain policies were adopted and others rejected. See Palmer v. Thomp son, 403 U.S., at 224-225, 91 S.Ct., at 1944-1945; United States v. O'Brien, 391 U.S., at 382-386, 88 S.Ct., at 1681-1684; cf. Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 224, 227, 93 S.Ct. 2686, 2705, 2706, 37 L.Ed.2d 548 (1973) (POWELL, J., concurring in part and dissenting in part). An approach based on motivation creates the risk that officials will be able to adopt policies that are the products of discriminatory intent so long as they sufficiently mask their motives through the use of subtlety and illusion. Washington v. Davis is premised on the notion that this risk is insufficient to overcome the deference the judiciary must accord to governmental decisions about the distribution of constitutional gratuities. That risk becomes intolerable, however, when the precious right to vote protected by the Fifteenth Amendment is concerned. 146 I continue to believe, then, that under the Fifteenth Amendment an "[e]valuation of the purpose of a legislative enactment is just too ambiguous a task to be the sole tool of constitutional analysis. . . . [A] demonstration of effect ordinarily should suffice. If, of course, purpose may conclusively be shown, it too should be sufficient to demonstrate a statute's unconstitutionality." Beer v. United States, 425 U.S., at 149-150, n. 5, 96 S.Ct., at 1368, n. 5 (MARSHALL, J., dissenting). The plurality's refusal in this case even to consider this approach bespeaks an indifference to the plight of minorities who, through no fault of their own, have suffered diminution of the right preservative of all other rights.33 III 147 If it is assumed that proof of discriminatory intent is necessary to support the vote-dilution claims in these cases, the question becomes what evidence will satisfy this requirement.34 148 The plurality assumes, without any analysis, that these cases are appropriate for the application of the rigid test developed in Personnel Administrator of Mass. v. Feeney, 442 U.S., at 279, 99 S.Ct., at 2296, requiring that "the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." In my view, the Feeney standard creates a burden of proof far too extreme to apply in vote-dilution cases.35 149 This Court has acknowledged that the evidentiary inquiry involving discriminatory intent must necessarily vary depending upon the factual context. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 264-268, 97 S.Ct., at 562-565; Washington v. Davis, 426 U.S., at 253, 96 S.Ct., at 2054 (STEVENS, J., concurring). One useful evidentiary tool, long recognized by the common law, is the presumption that "[e]very man must be taken to contemplate the probable consequences of the act he does." Townsend v. Wathen, 9 East. 277, 280, 103 Eng.Rep. 579, 580-581 (K.B.1808). The Court in Feeney, supra, at 279, n. 25, 99 S.Ct., at 2296, n. 25, acknowledged that proof of foreseeability of discriminatory consequences could raise a "strong inference that the adverse effects were desired," but refused to treat this presumption as conclusive in cases alleging discriminatory distribution of constitutional gratuities. 150 I would apply the common-law foreseeability presumption to the present cases. The plaintiffs surely proved that maintenance of the challenged multimember districting would have the foreseeable effect of perpetuating the submerged electoral influence of Negroes, and that this discriminatory effect could be corrected by implementation of a single-member districting plan.36 Because the foreseeable disproportionate impact was so severe, the burden of proof should have shifted to the defendants, and they should have been required to show that they refused to modify the districting schemes in spite of, not because of, their severe discriminatory effect. See Feeney, supra, at 284, 99 S.Ct., at 2299 (MARSHALL, J., dissenting). Reallocation of the burden of proof is especially appropriate in these cases, where the challenged state action infringes the exercise of a fundamental right. The defendants would carry their burden of proof only if they showed that they considered submergenceof the Negro vote a detriment, not a benefit, of the multimember systems, that they accorded minority citizens the same respect given to whites, and that they nevertheless decided to maintain the systems for legitimate reasons. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 270-271, n. 21, 97 S.Ct., at 566, n. 21. This approach recognizes that 151 "[f]requently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation." Washington v. Davis, supra, 426 U.S., at 253, 96 S.Ct., at 2054 (STEVENS, J., concurring). 152 Furthermore, if proof of discriminatory purpose is to be required in these cases, this standard would comport with my view that the degree to which the government must justify a decision depends upon the importance of the interests infringed by it. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S., at 109-110, 93 S.Ct., at 1335, 1336 (MARSHALL, J., dissenting).37 153 The plurality also fails to recognize that the maintenance of multimember districts in the face of foreseeable discriminatory consequences strongly suggests that officials are blinded by "racially selective sympathy and indifference."38 Like outright racial hostility, selective racial indifference reflects a belief that the concerns of the minority are not worthy of the same degree of attention paid to problems perceived by whites. When an interest as fundamental as voting is diminished along racial lines, a requirement that discriminatory purpose must be proved should be satisfied by a showing that official action was produced by this type of pervasive bias. In the present cases, the plaintiffs presented strong evidence of such bias: they showed that Mobile officials historically discriminated against Negroes, that there are pervasive present effects of this past discrimination, and that officials have not been responsive to the needs of the minority community. It takes only the smallest of inferential leaps to conclude that the decisions to maintain multimember districting having obvious discriminatory effects represent, at the very least, selective racial sympathy and indifference resulting in the frustration of minority desires, the stigmatization of the minority as second-class citizens, and the perpetuation of inhumanity.39 IV 154 The American approach to government is premised on the theory that, when citizens have the unfettered right to vote, public officials will make decisions by the democratic accommodation of competing beliefs, not by deference to the mandates of the powerful. The American approach to civil rights is premised on the complementary theory that the unfettered right to vote is preservative of all other rights. The theoretical foundations for these approaches are shattered where, as in the present cases, the right to vote is granted in form, but denied in substance. 155 It is time to realize that manipulating doctrines and drawing improper distinctions under the Fourteenth and Fifteenth Amendments, as well as under Congress' remedial legislation enforcing those Amendments, make this Court an accessory to the perpetuation of racial discrimination. The plurality's requirement of proof of intentional discrimination, so inappropriate in today's cases, may represent an attempt to bury the legitimate concerns of the minority beneath the soil of a doctrine almost as impermeable as it is specious. If so, the superficial tranquility created by such measures can be but short-lived. If this Court refuses to honor our long-recognized principle that the Constitution "nullifies sophisticated as well as simple-minded modes of discrimination," Lane v. Wilson, 307 U.S., at 275, 59 S.Ct., at 876, it cannot expect the victims of discrimination to respect political channels of seeking redress. I dissent. 1 Approximately 35.4% of the residents of Mobile are Negro. 2 79 Stat. 437, as amended, 42 U.S.C. § 1973. The complaint also contained claims based on the First and Thirteenth Amendments and on 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) (1976 ed., Supp. II). Those claims have not been pressed in this Court. 3 The District Court has stayed its orders pending disposition of the present appeal. 4 Ala.Code, § 11-43 (1975). 5 Act No. 281, 1911 Ala.Acts, p. 330. 6 In 1965 the Alabama Legislature enacted Act No. 823, 1965 Ala.Acts, p. 1539, § 2 of which designated specific administrative tasks to be performed by each Commissioner and provided that the title of Mayor be rotated among the three. After the present lawsuit was commenced, the city of Mobile belatedly submitted Act No. 823 to the Attorney General of the United States under § 5 of the Voting Rights Act of 1965. 42 U.S.C. § 1973c. The Attorney General objected to the legislation on the ground that the city had not shown that § 2 of the Act would not have the effect of abridging the right of Negroes to vote. No suit has been brought in the District Court for the District of Columbia to seek clearance under § 5 of the Voting Rights Act and, accordingly, § 2 of Act No. 823 is in abeyance. 7 According to the 1979 Municipal Year Book, most municipalities of over 25,000 people conducted at-large elections of their city commissioners or council members as of 1977. Id., at 98-99. It is reasonable to suppose that an even larger majority of other municipalities did so. 8 Cf. Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1. But see Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146; Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 60 L.Ed.2d 82. 9 Section 1 of the Fifteenth Amendment provides: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." 10 The Court has repeatedly cited Gomillion v. Lightfoot, for the principle that an invidious purpose must be adduced to support a claim of unconstitutionality. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 266, 97 S.Ct. 555, 563, 50 L.Ed.2d 450; Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597. 11 Mr. Justice MARSHALL has elsewhere described the fair import of the Gomillion and Wright cases: "In the two Fifteenth Amendment redistricting cases, Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), the Court suggested that legislative purpose alone is determinative, although language in both cases may be isolated that seems to approve some inquiry into effect insofar as it elucidates purpose." Beer v. United States, 425 U.S. 130, 148, n. 4, 96 S.Ct. 1357, 1367, n. 4, 47 L.Ed.2d 629 (dissenting opinion). The Court in the Wright case also rejected claims made under the Equal Protection Clause of the Fourteenth Amendment. See infra, at 67. 12 We have made clear, however, that a court in formulating an apportionment plan as an exercise of its equity powers should, as a general rule, not permit multimember legislative districts. "[S]ingle-member districts are to be preferred in court-ordered legislative reapportionment plans unless the court can articulate a 'singular combination of unique factors' that justifies a different result. Mahan v. Howell, 410 U.S. 315, 333, 93 S.Ct. 979, 989, 35 L.Ed. 320." Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 1834, 52 L.Ed.2d 465. 13 The dissenting opinion of Mr. Justice Marshall reads the Court's opinion in Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401, to say that a claim of vote dilution under the Equal Protection Clause could rest on either discriminatory purpose or effect. Post, at 108. In fact, the Court explicitly reserved this question and expressed no view concerning it. That case involved solely a claim, which the Court rejected, that a state legislative apportionment statute creating some multimember districts was constitutionally infirm on its face. Although the Court recognized that "designedly or otherwise," multimember districting schemes might, under the circumstances of a particular case, minimize the voting strength of a racial group, an issue as to the constitutionality of such an arrangement "[was] not presented by the record," and " 'our holding ha[d] no bearing on that wholly separate question.' " 379 U.S., at 439, 85 S.Ct., at 501. The phrase "designedly or otherwise" in which this dissenting opinion places so much stock, was repeated, also in dictum in Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376. But the constitutional challenge to the multimember constituencies failed in that case because the plaintiffs demonstrated neither discriminatory purpose nor effect. Id., at 88-90, and nn. 15 and 16, 86 S.Ct., at 1294-1295 and nn. 15 and 16. 14 In Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298, a case decided the same day as White v. Regester, the Court interpreted both White and the earlier vote dilution cases as turning on the existence of discriminatory purpose: "State legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment. A districting statute otherwise acceptable, may be invalid because it fences out a racial group so as to deprive them of their pre-existing municipal vote. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). A districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed 'to minimize or cancel out the voting strength of racial or political elements of the voting population.' Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). See White v. Regester, post, 412 U.S. p. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Abate v. Mundt, 403 U.S. [182], at 184, n. 2, 91 S.Ct. 1904, 1906, n. 2, 29 L.Ed.2d 399; Burns v. Richardson, 384 U.S., at 88-89, 86 S.Ct., at 1294-1295." 412 U.S., at 751, 93 S.Ct., at 2330-31 (emphasis added). 15 See Wise v. Lipsomb, 437 U.S. 535, 550, 98 S.Ct. 2493, 2501, 57 L.Ed.2d 411 (opinion of REHNQUIST, J.). It is noteworthy that a system of at-large city elections in place of elections of city officials by the voters of small geographic wards was universally heralded not many years ago as a praiseworthy and progressive reform of corrupt municipal government. See, e. g., E. Banfield & J. Wilson, City Politics 151 (1963). Cf., M. Seasongood, Local Government in the United States (1933); L. Steffens, The Shame of the Cities (1904). 16 This Court affirmed the judgment of the Court of Appeals in Zimmer v. McKeithen on grounds other than those relied on by that court and explicitly "without approval of the constitutional views expressed by the Court of Appeals." East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 638, 96 S.Ct. 1083, 1085, 47 L.Ed.2d 296 (per curiam ). 17 The only indication given by the District Court of an inference that there existed an invidious purpose was the following statement: "It is not a long step from the systematic exclusion of blacks from juries which is itself such an 'unequal application of the law . . . as to show intentional discrimination,' Akins v. Texas, 325 U.S. 398, 404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692, . . . to [the] present purpose to dilute the black vote as evidenced in this case. There is a 'current' condition of dilution of the black vote resulting from intentional state legislative inaction which is as effective as the intentional state action referred to in Keyes [v. School District No. 1, Denver Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548]." 423 F.Supp., at 398. What the District Court may have meant by this statement is uncertain. In any event the analogy to the racially exclusionary jury cases appears mistaken. Those cases typically have involved a consistent pattern of discrete official actions that demonstrated almost to a mathematical certainty that Negroes were being excluded from juries because of their race. See Castaneda v. Partida, 430 U.S. 482, 495-497, and n. 17, 97 S.Ct. 1272, 1280-1281, and n. 17, 51 L.Ed.2d 498; Patton v. Mississippi, 332 U.S. 463, 466-467, 68 S.Ct. 184, 186; Pierre v. Louisiana, 306 U.S. 354, 359, 59 S.Ct. 536, 539, 83 L.Ed. 757; Norris v. Alabama, 294 U.S. 587, 591, 55 S.Ct. 579, 580, 79 L.Ed. 1074. If the District Court meant by its statement that the existence of the at-large electoral system was, like the systematic exclusion of Negroes from juries, unexplainable on grounds other than race, its inference is contradicted by the history of the adoption of that system in Mobile. Alternatively, if the District Court meant that the state legislature may be presumed to have "intended" that there would be no Negro Commissioners, simply because that was a foreseeable consequence of at-large voting, it applied an incorrect legal standard. " 'Discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of Mass. v. Feeney, 442 U.S., at 279, 99 S.Ct., at 2296 (footnotes omitted.) 18 The Court of Appeals expressed the view that the District Court's finding of discrimination in light of the Zimmer criteria was "buttressed" by the fact that the Attorney General had interposed an objection under § 5 of the Voting Rights Act of 1965 to the state statute designating the functions of each Commissioner. 571 F.2d 238, 246 (CA5). See n. 6, supra. 19 There have been only three Negro candidates for the City Commission, all in 1973. According to the District Court, the Negro candidates "were young, inexperienced, and mounted extremely limited campaigns" and received only "modest support from the black community . . . ." 423 F.Supp., at 388. 20 Among the difficulties with the District Court's view of the evidence was its failure to identify the state officials whose intent it considered relevant in assessing the invidiousness of Mobile's system of government. To the extent that the inquiry should properly focus on the state legislature, see n. 21, infra, the actions of unrelated governmental officials would be, of course, of questionable relevance. 21 According to the District Court, voters in the city of Mobile are represented in the state legislature by three state senators, any one of whom can veto proposed local legislation under the existing courtesy rule. Likewise, a majority of Mobile's 11-member House delegation can prevent a local bill from reaching the floor for debate. Unanimous approval of a local measure by the city delegation, on the other hand, virtually assures passage. 423 F.Supp., at 397. There was evidence in this case that several proposals that would have altered the form of Mobile's municipal government have been defeated in the state legislature, including at least one that would have permitted Mobile to govern itself through a Mayor and City Council with members elected from individual districts within the city. Whether it may be possible ultimately to prove that Mobile's present governmental and electoral system has been retained for a racially discriminatory purpose, we are in no position now to say. 22 The dissenting opinion seeks to disclaim this description of its theory by suggesting that a claim of vote dilution may require, in addition to proof of electoral defeat, some evidence of "historical and social factors" indicating that the group in question is without political influence. Post, at 111-112, n. 7, 122-124. Putting to the side the evident fact that these gauzy sociological considerations have no constitutional basis, it remains far from certain that they could, in any principled manner, exclude the claims of any discrete political group that happens, for whatever reason, to elect fewer of its candidates than arithmetic indicates it might. Indeed, the putative limits are bound to prove illusory if the express purpose informing their application would be, as the dissent assumes, to redress the "inequitable distribution of political influence." Post, at 122. 23 The presumption of constitutional validity that underlies the settled mode of reviewing legislation disappears, of course, if the law under consideration creates classes that, in a constitutional sense, are inherently "suspect." See McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664. Cf. Lockport v. Citizens for Community Action, 430 U.S. 259, 97 S.Ct. 1047, 51 L.Ed.2d 313. 24 The basic fallacy in the dissenting opinion's theory is illustrated by analogy to a defendant's right under the Sixth and Fourteenth Amendments to a trial by a jury of his peers in a criminal case. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. That right, expressly conferred by the Constitution, is certainly "fundamental" as that word is used in the dissenting opinion. Moreover, under the Equal Protection Clause, a defendant has a right to require that the State not exclude from the jury members of his race. See Castaneda v. Partida, 430 U.S., at 493, 97 S.Ct., at 1279. But "[f]airness in selection has never been held to require proportional representation of races upon a jury," Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692; nor has the defendant any "right to demand that members of his race be included," Alexander v. Louisiana, 405 U.S. 625, 628, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536. The absence from a jury of persons belonging to racial or other cognizable groups offends the Constitution only "if it results from purposeful discrimination." Castaneda v. Partida, supra, 430 U.S., at 493, 97 S.Ct., at 1279. See Alexander v. Louisiana, supra; see also Washington v. Davis, 426 U.S., at 239-240, 96 S.Ct., at 2047. Thus, the fact that there is a constitutional right to a system of jury selection that is not purposefully exclusionary does not entail a right to a jury of any particular racial composition. Likewise, the fact that the Equal Protection Clause confers a right to participate in elections on an equal basis with other qualified voters does not entail a right to have one's candidates prevail. 25 The dissenting opinion also relies upon several decisions of this Court that have held constitutionally invalid various voter eligibility requirements: Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (length of residence requirement); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (exclusion of residents of federal property); Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (property or status requirement); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (poll tax requirement). But there is in this case no attack whatever upon any of the voter eligibility requirements in Mobile. Nor do the cited cases contain implicit support for the position of the dissenting opinion. They stand simply for the proposition that "if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest." Kramer v. Union School District, supra, 395 U.S., at 627, 89 S.Ct., at 1890. It is difficult to perceive any similarity between the excluded person's right to equal electoral participation in the cited cases, and the right asserted by the dissenting opinion in the present case, aside from the fact that they both in some way involve voting. 26 It is difficult to perceive how the implications of the dissenting opinion's theory of group representation could rationally be cabined. Indeed, certain preliminary practical questions immediately come to mind: Can only members of a minority of the voting population in a particular municipality be members of a "political group"? How large must a "group" be to be a "political group"? Can any "group" call itself a "political group"? If not, who is to say which "groups" are "political groups"? Can a qualified voter belong to more than one "political group"? Can there be more than one "political group" among white voters (e. g., Irish-American, Italian-American, Polish-American, Jews, Catholics, Protestants)? Can there be more than one "political group" among nonwhite voters? Do the answers to any of these questions depend upon the particular demographic composition of a given city? Upon the total size of its voting population? Upon the size of its governing body? Upon its form of government? Upon its history? Its geographic location? The fact that even these preliminary questions may be largely unanswerable suggests some of the conceptual and practical fallacies in the constitutional theory espoused by the dissenting opinion, putting to one side the total absence of support for that theory in the Constitution itself. 1 In Reynolds v. Sims, the Court quoted Mr. Justice Douglas' statement that the right to vote "includes the right to have the vote counted at full value without dilution or discount . . . ," 377 U.S., at 555, n. 29, 84 S.Ct., at 1378, n. 29, as well as the comment in Wesberry v. Sanders, 376 U.S. 1, 8, 84 S.Ct. 526, 533, 11 L.Ed.2d 481, that " 'one man's vote in a congressional election is to be worth as much as another's.' " 377 U.S., at 559, 84 S.Ct., at 1380. 2 This finding distinguishes this case from White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314. In White the Court held that, in order to establish a Fourteenth Amendment violation, a group alleging vote dilution must "produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." Id., at 766, 93 S.Ct., at 2339. The Court affirmed a judgment in favor of black and Mexican-American voters on the basis of the District Court's express findings that black voters had been " 'effectively excluded from participation in the Democratic primary selection process,' " id., at 767, 93 S.Ct., at 2340, and that " ' . . . cultural incompatibility . . . conjoined with the poll tax and the most restrictive voter registration procedures in the nation ha[d] operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.' " Id., at 768, 93 S.Ct., at 2341. 3 Thus, I disagree with Mr. Justice STEWART's conclusion for the plurality that the Fifteenth Amendment applies only to practices that directly affect access to the ballot and hence is totally inapplicable to the case at bar. Ante, at 65. I also find it difficult to understand why, given this position, he reaches out to decide that discriminatory purpose must be demonstrated in a proper Fifteenth Amendment case. Ante, at 61-64. 4 "The petitioners here complain that affirmative legislative action deprives them of their votes and the consequent advantages that the ballot affords. When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens. * * * * * "According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights and to that end it has incidentally changed the city's boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights." 364 U.S., at 346, 347, 81 S.Ct., at 130. 5 I also disagree with Mr. Justice MARSHALL to the extent that he implies that the votes cast in an at-large election by members of a racial minority can never be anything more than "meaningless ballots." I have no doubt that analyses of Presidential, senatorial and other statewide elections would demonstrate that ethnic and racial minorities have often had a critical impact on the choice of candidates and the outcome of elections. There is no reason to believe that the same political forces cannot operate in smaller election districts regardless of the depth of conviction or emotion that may separate the partisans of different points of view. 6 And this is true regardless of the apparent need of a particular group for proportional representation because of its historically disadvantaged position in the community. See Cousins v. City Council of Chicago, 466 F.2d 830, 852 (CA7 1972) (Stevens, J., dissenting), cert. denied, 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 151. This does not mean, of course, that a legislature is constitutionally prohibited from according some measure of proportional representation to a minority group, see United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229. 7 This view is consistent with the Court's Fourteenth Amendment cases in which it has indicated that attacks on apportionment schemes on racial, political, or economic grounds should all be judged by the same constitutional standard. See, e. g., Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (districts that are "conceived or operated as purposeful devices to further racial or economic discrimination" are prohibited by the Fourteenth Amendment) (emphasis supplied); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (an apportionment scheme would be invalid under the Fourteenth Amendment if it "operate[d] to minimize or cancel out the voting strength of racial or political elements of the voting population") (emphasis supplied). 8 Gerrymanders may also be used to preserve the current balance of power between political parties, see, e. g., Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298, or to preserve the safe districts of incumbents, cf. Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512. In Gaffney the Court pointed out: "[I]t requires no special genius to recognize the political consequences of drawing a district line along one street rather than another. It is not only obvious, but absolutely unavoidable, that the location and shape of districts may well determine the political complexion of the area. District lines are rarely neutral phenomena. They can well determine what district will be predominantly Democratic or predominantly Republican, or make a close race likely. Redistricting may pit incumbents against one another or make very difficult the election of the most experienced legislator. The reality is that districting inevitably has and is intended to have substantial political consequences." 412 U.S., at 753, 93 S.Ct., at 2331. 9 Thus, for example, there is little qualitative difference between the motivation behind a religious gerrymander designed to gain votes on the abortion issue and a racial gerrymander designed to gain votes on an economic issue. 10 As Mr. Justice Douglas wrote in his dissent in Wright v. Rockefeller : "Racial electoral registers, like religious ones, have no place in a society that honors the Lincoln tradition—'of the people, by the people, for the people.' Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is within the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on. Cf. Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 807, 9 L.Ed.2d 821. The racial electoral register system weighs votes along one racial line more heavily than it does other votes. That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. Of course race, like religion, plays an important role in the choices which individual voters make from among various candidates. But government has no business designing electoral districts along racial or religious lines. * * * * * "When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one becomes separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here." 376 U.S., at 66-67, 84 S.Ct., at 611. See also my dissent in Cousins, supra : "In my opinion an interpretation of the Constitution which afforded one kind of political protection to blacks and another kind to members of other identifiable groups would itself be invidious. Respect for the citizenry in the black community compels acceptance of the fact that in the long run there is no more certainty that these individuals will vote alike than will individual members of any other ethnic, economic, or social group. The probability of parallel voting fluctuates as the blend of political issues affecting the outcome of an election changes from time to time to emphasize one issue, or a few, rather than others, as dominant. The facts that a political group has its own history, has suffered its own special injustices, and has its own congeries of special political interests, do not make one such group different from any other in the eyes of the law. The members of each go to the polls with equal dignity and with an equal right to be protected from invidious discrimination." 466 F.2d, at 852. 11 In O'Brien the Court described Gomillion as standing "not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional." 12 "It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process. A law conscripting clerics should not be invalidated because an atheist voted for it." Washington v. Davis, 426 U.S. 229, 253, 96 S.Ct. 2040, 2054, 48 L.Ed.2d 597 (STEVENS, J., concurring). 13 For example, if 55% of the voters in an area comprising two districts belong to group A, their interests in electing two representatives would be best served by evenly dividing the voters in two districts, but their interests in making sure that they elect at least one representative would be served by concentrating a larger majority in one district. See Cousins v. City Council of Chicago, 466 F.2d, at 855, n. 30 (Stevens, J., dissenting). See also Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512, where the maintenance of racially separate congressional districts was challenged by one group of blacks and supported by another group having the dominant power in the black-controlled district. 14 I emphasize this point because in my opinion there is a significant difference between a statewide legislative plan that "happens" to use multimember districts only in those areas where they disadvantage discrete minority groups and the use of a generally acceptable municipal form of government that involves the election of commissioners by the voters at large. While it is manifest that there is a substantial neutral justification for a municipality's choice of a commission form of government, it is by no means obvious that an occasional multimember district in a State which typically uses single-member districts can be adequately explained on neutral grounds. Nothing in the Court's opinion in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314, describes any purported neutral explanation for the multimember districts in Bexar and Dallas Counties. In this connection, it should be remembered that Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771, did not uphold the constitutionality of a "crazy quilt" of single-member and multimember districts; rather, in that case this Court merely upheld the findings by the District Court that the plaintiffs had failed to prove their allegations that the districting plan constituted such a crazy quilt. 15 Rejection of Mr. Justice Frankfurter's views in the specific controversy presented by Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, does not refute the basic wisdom of his call for judicially manageable standards in this area: "Disregard of inherent limits in the effective exercise of the Court's 'judicial Power' not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court's position as the ultimate organ of 'the supreme Law of the Land' in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements." Id., at 267, 82 S.Ct., at 737-38 (Frankfurter, J., dissenting). 1 U.S.Const., Amdts. 15, 17, 19, 23, 24, 26. 2 I agree with the plurality, see ante, at 60-61, 100 S.Ct. at 1496-1497, that the prohibition on denial or infringement of the right to vote contained in § 2 of the Voting Rights Act, 42 U.S.C. § 1973, contains the same standard as the Fifteenth Amendment. I disagree with the plurality's construction of that Amendment, however. See Part II, infra. 3 The Court does not quarrel with the generalization that in many instances an electoral minority will fare worse under multimember districting than under single-member districting. Multimember districting greatly enhances the opportunity of the majority political faction to elect all representatives of the district. In contrast, if the multimember district is divided into several single-member districts, an electoral minority will have a better chance to elect a candidate of its choice, or at least to exert greater political influence. It is obvious that the greater the degree to which the electoral minority is homogeneous and insular and the greater the degree that bloc voting occurs along majority-minority lines, the greater will be the extent to which the minority's voting power is diluted by multimember districting. See E. Banfield & J. Wilson, City Politics 91-96, 303-308 (1963); R. Dixon, Jr., Democratic Representation 12, 476-484, 503-527 (1968); Bonapfel, Minority Challenges to At-Large Elections: The Dilution Problem, 10 Ga.L.Rev. 353, 358-360 (1976); Derfner, Racial Discrimination and the Right to Vote, 26 Vand.L.Rev. 523, 553-555 (1973); Comment, Effective Representation and Multimember Districts, 68 Mich.L.Rev. 1577, 1577-1579 (1970). Recent empirical studies have documented the validity of this generalization. See Berry & Dye, The Discriminatory Effects of At-Large Elections, 7 Fla.St.U.L.Rev. 85, 113-122 (1979); Jones, The Impact of Local Election Systems on Black Political Representation, 11 Urb.Aff.Q. 345 (1976); Karnig, Black Resources and City Council Representation, 41 J.Pol. 134 (1979); Karnig, Black Representation on City Councils: The Impact of District Elections and Socioeconomic Factors, 12 Urb.Aff.Q. 223 (1976); Sloan, "Good Government" and the Politics of Race, 17 Soc.Prob. 161 (1969); The Impact of Municipal Reformism: A Symposium, 59 Soc.Sci.Q. 117 (1978). The electoral schemes in these cases involve majority-vote, numbered-post, and staggered-term requirements. See Bolden v. City of Mobile, 423 F.Supp. 384, 386-387 (SD Ala.1976); Brown v. Moore, 428 F.Supp. 1123, 1126-1127 (SD Ala.1976). These electoral rules exacerbate the vote-dilutive effects of multimember districting. A requirement that a candidate must win by a majority of the vote forces a minority candidate who wins a plurality of votes in the general election to engage in a run off election with his nearest competitor. If the competitor is a member of the dominant political faction, the minority candidate stands little chance of winning in the second election. A requirement that each candidate must run for a particular "place" or "post" creates head-to-head contests that minority candidates cannot survive. When a number of positions on a governmental body are to be chosen in the same election, members of a minority will increase the likelihood of election of a favorite candidate by voting only for him. If the remainder of the electorate splits its votes among the other candidates, the minority's candidate might well be elected by the minority's "single-shot voting." If the terms of officeholders are staggered, the opportunity for single-shot voting is decreased. See City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Zimmer v. McKeithen, 485 F.2d 1297, 1305 (CA5 1973) (en banc), aff'd on other grounds, sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam ); Bonapfel, supra ; Derfner, supra. 4 The plurality notes that at-large elections were instituted in cities as a reform measure to correct corruption and inefficiency in municipal government, and suggests that it "may be a rash assumption" to apply vote-dilu- tion concepts to a municipal government elected in that fashion. See ante, at 70, and n. 15, 100 S.Ct. at 1502, and n. 15. To the contrary, local governments are not exempt from the constitutional requirement to adopt representational districting ensuring that the votes of each citizen will have equal weight. Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). Indeed, in Beer v. United States, 425 U.S. 130, 142, n. 14, 96 S.Ct. 1357, 1364, n. 14, 47 L.Ed.2d 629 (1976), and Abate v. Mundt, 403 U.S. 182, 184, n. 2, 91 S.Ct. 1904, 1906, n. 2, 29 L.Ed.2d 399 (1971), we assumed that our vote-dilution doctrine applied to local governments. Furthermore, though municipalities must be accorded some discretion in arranging their affairs, see Abate v. Mundt, supra, there is all the more reason to scrutinize assertions that municipal, rather than state, multi-member districting dilutes the vote of an electoral minority: "In statewide elections, it is possible that a large minority group in one multi-member district will be unable to elect any legislators, while in another multi-member district where the same group is a slight majority, they will elect the entire slate of legislators. Thus, the multi-member electoral system may hinder a group in one district but prove an advantage in another. In at-large elections in cities this is not possible. There is no way to balance out the discrimination against a particular minority group because the entire city is one huge election district. The minority's loss is absolute." Berry & Dye, supra n. 3, at 87. That at-large elections were instituted as part of a "reform" movement in no way ameliorates these harsh effects. Moreover, in some instances the efficiency and breadth of perspective supposedly resulting from a reform structure of municipal government are achieved at a high cost. In a white-majority city in which severe racial bloc voting is common, the citywide view allegedly inculcated in city commissioners by at-large elections need not extend beyond the white community, and the efficiency of the commission form of government can be achieved simply by ignoring the concerns of the powerless minority. It would be a mistake, then, to conclude that municipal at-large elections provide an inherently superior representational scheme. See also n. 3, supra; Chapman v. Meier, 372 F.Supp. 371, 388-392 (ND 1974) (three-judge court) (Bright, J., dissenting), rev'd, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). It goes without saying that a municipality has the freedom to design its own governance system. When that system is subjected to constitutional attack, however, the question is whether it was enacted or maintained with a discriminatory purpose or has a discriminatory effect, not whether it comports with one or another of the competing notions about "good government." 5 As the plurality notes, see ante, at 66, 100 S.Ct., at 1499, we indicated in Whitcomb v. Chavis, 403 U.S., at 149, 91 S.Ct., at 1872, that multimember districts were unconstitutional if they were "conceived or operated as purposeful devices to further racial or economic discrimination." The Court in Whitcomb did not, however, suggest that discriminatory purpose was a necessary condition for the invalidation of multimember districting. Our decision in Whitcomb, supra, at 143, 91 S.Ct., at 1869, acknowledged the continuing validity of the discriminatory-impact test adopted in Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965), and restated it as requiring plaintiffs to prove that "multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements." Whitcomb, supra, 403 U.S., at 144, 91 S.Ct., at 1869 (emphasis added). Abate v. Mundt, supra, decided the same day as Whitcomb, provides further evidence that Whitcomb did not alter the discriminatory-effects standard developed in earlier cases. In Abate, supra, at 184, n. 2, 91 S.Ct., at 1906, n. 2, we rejected the argument that a multimember districting scheme had a vote-dilutive effect because "[p]etitioners . . . have not shown that these multi-member districts, by themselves, operate to impair the voting strength of particular racial or political elements . . ., see Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966)." 6 See n. 3, supra. 7 White v. Regester, makes clear the distinction between the concepts of vote dilution and proportional representation. We have held that, in order to prove an allegation of vote dilution, the plaintiffs must show more than simply that they have been unable to elect candidates of their choice. See 412 U.S., at 765-766, 93 S.Ct., at 2339; Whitcomb v. Chavis, supra, at 149-150, 153, 91 S.Ct., at 1872, 1873. The Constitution, therefore, does not contain any requirement of proportional representation. Cf. United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 966, 51 L.Ed.2d 229 (1977); Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). When all that is proved is mere lack of success at the polls, the Court will not presume that members of a political minority have suffered an impermissible dilution of political power. Rather, it is assumed that these persons have means available to them through which they can have some effect on governmental decisionmaking. For example, many of these persons might belong to a variety of other political, social, and economic groups that have some impact on officials. In the absence of evidence to the contrary, it may be assumed that officials will not be improperly influenced by such factors as the race or place of residence of persons seeking governmental action. Furthermore, political factions out of office often serve as watchdogs on the performance of the government, bind together into coalitions having enhanced influence, and have the respectability necessary to affect public policy. Unconstitutional vote dilution occurs only when a discrete political minority whose voting strength is diminished by a districting scheme proves that historical and social factors render it largely incapable of effectively utilizing alternative avenues of influencing public policy. See n. 19, infra. In these circumstances, the only means of breaking down the barriers encasing the political arena is to structure the electoral districting so that the minority has a fair opportunity to elect candidates of its choice. The test for unconstitutional vote dilution, then, looks only to the discriminatory effects of the combination of an electoral structure and historical and social factors. At the same time, it requires electoral minorities to prove far more than mere lack of success at the polls. We have also spoken of dilution of voting power in cases arising under the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. Under § 5 of that Act, 42 U.S.C. § 1973c, a state or local government covered by the Act may not enact new electoral procedures having the purpose or effect of denying or abridging the right to vote on account of race or color. We have interpreted this provision as prohibiting any retrogression in Negro voting power. Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1363, 47 L.Ed.2d 629 (1976). In some cases, we have labeled such retrogression a "dilution" of the minority vote. See, e. g., City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). Vote dilution under § 5, then, involves a standard different from that applied in cases such as White v. Regester, supra, in which diminution of the vote violating the Fourteenth or Fifteenth Amendment is alleged. 8 The plurality's approach is also inconsistent with our statement in Dallas County v. Reese, 421 U.S. 477, 480, 95 S.Ct. 1706, 1707, 44 L.Ed.2d 312 (1975) (per curiam ), that multimember districting violates the Equal Protection Clause if it "in fact operates impermissibly to dilute the voting strength of an identifiable element of the voting population." See also Chapman v. Meier, 420 U.S., at 17, 95 S.Ct., at 761. 9 See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (right to travel); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (right to vote); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (right to fair access to criminal process). Under the rubric of the fundamental right of privacy, we have recognized that individuals have freedom from unjustified governmental interference with personal decisions involving marriage, Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); contraception, Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 328, 13 L.Ed.2d 339 (1965); abortion, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); family relationships, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). See also Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 675 (1977). 10 As the present cases illustrate, a requirement of proof of discriminatory intent seriously jeopardizes the free exercise of the fundamental right to vote. Although the right to vote is indistinguishable for present purposes from the other fundamental rights our cases have recognized, see n. 9, supra, surely the plurality would not require proof of discriminatory purpose in those cases. The plurality fails to articulate why the right to vote should receive such singular treatment. Furthermore, the plurality refuses to recognize the disutility of requiring proof of discriminatory purpose in fundamental rights cases. For example, it would make no sense to require such a showing when the question is whether a state statute regulating abortion violates the right of personal choice recognized in Roe v. Wade, supra. The only logical inquiry is whether, regardless of the legislature's motive, the statute has the effect of infringing that right. See, e. g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). 11 Judge Wisdom of the Court of Appeals below recognized this distinction in a companion case, see Nevett v. Sides, 571 F.2d 209, 231-234 (CA5 1978) (specially concurring opinion). See also Comment, Proof of Racially Discriminatory Purpose Under the Equal Protection Clause: Washington v. Davis, Arlington Heights, Mt. Healthy, and Williamsburgh, 12 Harv.Civ.Rights-Civ.Lib.L.Rev. 725, 758, n. 175 (1977); Note, Racial Vote Dilution in Multimember Districts: The Constitutional Standard After Washington v. Davis, 76 Mich.L.Rev. 694, 722-726 (1978); Comment, Constitutional Challenges to Gerrymanders, 45 U.Chi.L.Rev. 845, 869-877 (1978). Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), involved alleged racial discrimination in public employment. By describing interests such as public employment as constitutional gratuities, I do not, of course, mean to suggest that their deprivation is immune from constitutional scrutiny. Indeed, our decisions have referred to the importance of employment, see Hampton v. Mow Sun Wong, 426 U.S. 88, 116, 96 S.Ct. 1895, 1911, 48 L.Ed.2d 495 (1976); Meyer v. Nebraska, supra, 43 S.Ct., at 626; Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915), and we have explicitly recognized that in some circumstances public employment falls within the categories of liberty and property protected by the Fifth and Fourteenth Amendments, see, e. g., Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The Court has not held, however, that a citizen has a constitutional right to public employment. 12 We have not, however, held that the Fourteenth Amendment contains an absolute right to vote. As we explained in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972): "In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. [Citing cases.] This 'equal right to vote' . . . is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. . . . But, as a general matter, 'before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.' " Id., at 336, 92 S.Ct., at 1000 (quoting Evans v. Cornman, 398 U.S. 419, 426, 422, 90 S.Ct. 1752, 1756, 1754, 26 L.Ed.2d 370 (1970)). 13 Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), applied the equal-representation standard of Reynolds v. Sims, to local governments. See also, e. g., Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977); Lockport v. Citizens for Community Action, 430 U.S. 259, 97 S.Ct. 1047, 51 L.Ed.2d 313 (1977); Hadley v. Junior College Dist., 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970). 14 In attempting to limit Reynolds v. Sims to its facts, see ante, at 77-79, 100 S.Ct., at 1505-1506, the plurality confuses the nature of the constitutional right recognized in that decision with the means by which that right can be violated. Reynolds held that under the Equal Protection Clause each citizen must be accorded an essentially equal voice in the election of representatives. The Court determined that unequal population distribution in a multi-district representational scheme was one readily ascertainable means by which this right was abridged. The Court certainly did not suggest, however, that violations of the right to effective political participation mattered only if they were caused by malapportionment. The plurality's assertion to the contrary in this case apparently would require it to read Reynolds as recognizing fair apportionment as an end in itself, rather than as simply a means to protect against vote dilution. 15 Proof of discriminatory purpose has been equally unnecessary in our decisions assessing whether various impediments to electoral participation are inconsistent with the fundamental interest in voting. In the seminal case, Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), we invalidated a $1.50 poll tax imposed as a precondition to voting. Relying on our decision two years earlier in Reynolds v. Sims, see Harper, supra, at 667-668, 670, 86 S.Ct., at 1083, we determined that "the right to vote is too precious, too fundamental to be so burdened or conditioned," 383 U.S., at 670, 86 S.Ct., at 1083. We analyzed the right to vote under the familiar standard that "where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined." Ibid. In accord with Harper, we have applied heightened scrutiny in assessing the imposition of filing fees, e. g., Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); limitations on who may participate in elections involving specialized governmental entities, e. g., Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); durational residency requirements, e. g., Dunn v. Blumstein, supra; enrollment time limitations for voting in party primary elections, e. g., Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); and restrictions on candidate access to the ballot, e. g., Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979). To be sure, we have approved some limitations on the right to vote. Compare, e. g., Salyer Land Co. v. Tulare Water District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), with Kramer v. Union School District, supra. We have never, however, required a showing of discriminatory purpose to support a claim of infringement of this fundamental interest. To the contrary, the Court has accepted at face value the purposes articulated for a qualification of this right, and has invalidated such a limitation under the Equal Protection Clause only if its purpose either lacked sufficient substantiality when compared to the individual interests affected or could have been achieved by less restrictive means. See, e. g., Dunn v. Blumstein, supra, at 335, 337, 343-360, 92 S.Ct., at 999, 1000, 1003-1012. The approach adopted in this line of cases has been synthesized with the one-person, one-vote doctrine of Reynolds v. Sims, in the following fashion: "It has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 59, n. 2, 93 S.Ct. 1278, 1310, n. 2, 36 L.Ed.2d 16 (1973) (STEWART, J., concurring) (citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Kramer v. Union School District, supra; Dunn v. Blumstein, supra ). It is plain that this standard requires no showing of discriminatory purpose to trigger strict scrutiny of state interference with the right to vote. 16 See Dorsey v. Fortson, 228 F.Supp. 259, 261 (ND Ga.1964) (three-judge court), rev'd, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 629 (1965). 17 Specifically, the plaintiffs contended that countywide voting in the multidistrict counties could, as a matter of mathematics, result in the nullification of the unanimous choice of the voters of one district. Fortson v. Dorsey, 379 U.S., at 436-437, 85 S.Ct., at 499-500. 18 The same is true of our most recent case discussing vote dilution, Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978). 19 In contrast to a racial group, however, a political group will bear a rather substantial burden of showing that it is sufficiently discrete to suffer vote dilution. See Dallas County v. Reese, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975) (per curiam ) (allowing city dwellers to attack a countywide multimember district). See generally Comment, Effective Representation and Multimember Districts, 68 Mich.L.Rev. 1577, 1594-1596 (1970). 20 The dispute in Washington v. Davis, concerned alleged racial discrimination in public employment, an interest to which no one has a constitutional right, see n. 11, supra. In that decision, the Court held only that "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." 426 U.S., at 240, 96 S.Ct., at 2048 (emphasis added). The Court's decisions following Washington v. Davis have also involved alleged discrimination in the allocation of interests falling short of constitutional rights. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (alleged sex discrimination in public employment); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (alleged racial discrimination in zoning). As explained in Feeney, supra, "[w]hen some other independent right is not at stake . . . and when there is no 'reason to infer antipathy,' . . . it is presumed that 'even improvident decisions will eventually be rectified by the democratic process.' " 442 U.S., at 272, 97 S.Ct., at 567 (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979)). 21 Professor Ely has recognized this distinction: "The danger I see is . . . that the Court, in its newfound enthusiasm for motivation analysis, will seek to export it to fields where it has no business. It therefore cannot be emphasized too strongly that analysis of motivation is appropriate only to claims of improper discrimination in the distribution of goods that are constitutionally gratuitous (that is, benefits to which people are not entitled as a matter of substantive constitutional right). . . . However, where what is denied is something to which the complainant has a substantive constitutional right —either because it is granted by the terms of the Constitution, or because it is essential to the effective functioning of a democratic government—the reasons it was denied are irrelevant. It may become important in court what justifications counsel for the state can articulate in support of its denial or nonprovision, but the reasons that actually inspired the denial never can: To have a right to something is to have a claim on it irrespective of why it is denied. It would be a tragedy of the first order were the Court to expand its burgeoning awareness of the relevance of motivation into the thoroughly mistaken notion that a denial of a constitutional right does not count as such unless it was intentional." Ely, The Centrality and Limits of Motivation Analysis, 15 San Diego L.Rev. 1155, 1160-1161 (1978) (emphasis in original) (footnotes omitted). 22 It is at this point that my view most diverges from the position expressed by my Brother STEVENS, ante, p. 83, 100 S.Ct., p. 1508. He would strictly scrutinize state action having an adverse impact on an individual's right to vote. In contrast, he would apply a less stringent standard to state action diluting the political influence of a group. See ante, at 83-85, 100 S.Ct., at 1508-1509. The facts of the present cases, however, demonstrate that severe and persistent racial bloc voting, when coupled with the inability of the minority effectively to participate in the political arena by alternative means, can effectively disable the individual Negro as well as the minority community as a whole. In these circumstances, Mr. Justice STEVENS' distinction between the rights of individuals and the political strength of groups becomes illusory. 23 The foregoing disposes of any contention that, merely by citing Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), the Court in Washington v. Davis, 426 U.S., at 240, 96 S.Ct., at 2047, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 264, 97 S.Ct., at 562, intended to bring vote-dilution cases within the discriminatory-purpose requirement. Wright v. Rockefeller, supra, was a racial gerrymander case, and the plaintiffs had alleged only that they were the victims of an intentional scheme to draw districting lines discriminatorily. In focusing solely on whether the plaintiffs had proved intentional discrimination, the Court in Wright v. Rockefeller was merely limiting the scope of its inquiry to the issue raised by the plaintiffs. If Wright v. Rockefeller had been brought after this Court had decided our vote-dilution decisions, the plaintiffs perhaps would have recognized that, in addition to a claim of intentional racial gerrymandering, they could allege an equally sufficient cause of action under the Equal Protection Clause—that the districting lines had the effect of diluting their vote. Wright v. Rockefeller, then, treated proof of discriminatory purpose as a sufficient condition to trigger strict scrutiny of a districting scheme, but had no occasion to consider whether such proof was necessary to invoke that standard. Its citations in Washington v. Davis, supra, and Arlington Heights, supra, were useful to show the relevancy, but not the necessity, of evidence of discriminatory intent. These citations are in no way inconsistent with my view that proof of discriminatory purpose is not a necessary condition to the invalidation of multimember districts that dilute the vote of racial or political elements. In addition, any argument that, merely by citing Wright v. Rockefeller, the Court in Washington v. Davis and Arlington Heights intended to apply the discriminatory-intent requirement to vote-dilution claims is premised on two unpalatable assumptions. First, because the discussion of Wright v. Rockefeller was unnecessary to the resolution of the issues in both of those decisions, the argument assumes that the Court in both cases decided important issues in brief dicta. Second, the argument assumes that the Court twice intended covertly to overrule the discriminatory-effects test applied in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), without even citing White. Neither assumption is tenable. 24 It is important to recognize that only the four Members of the plurality are committed to this view. In addition to my Brother BRENNAN and myself, my Brother STEVENS expressly states that proof of discriminatory effect can be a sufficient condition to support the invalidation of districting, see ante, at 90, 100 S.Ct., at 1512. My Brother WHITE finds the proof of discriminatory purpose in these cases sufficient to support the decisions of the Courts of Appeals, and accordingly he does not reach the issue whether proof of discriminatory impact, standing alone, would suffice under the Fifteenth Amendment. By Brother BLACKMUN also expresses no view on this issue, since he too finds the proof of discriminatory intent sufficient to support the findings of violations of the Constitution. 25 The plurality states that "[h]aving found that Negroes in Mobile 'register and vote without hindrance,' the District Court and Court of Appeals were in error in believing that the appellants invaded the protection of that Amendment in the present case." Ante, at 65, 100 S.Ct., at 1499. 26 Indeed, five Members of the Court decline the opportunity to ascribe to this view. In addition to my Brother BRENNAN and myself, my Brother STEVENS expressly states that the Fifteenth Amendment protects against diminution as well as denial of the ballot, see ante, at 84, and n. 3, 100 S.Ct., at 1509, and n. 3. The dissenting opinion of my Brother WHITE and the separate opinion of my Brother BLACKMUN indicate that they share this view. 27 The plurality does not attempt to support this proposition by relying on the history surrounding the adoption of the Fifteenth Amendment. I agree that we should resolved the issue of the relevancy of proof of discriminatory purpose and effect by examining our prior decisions and by considering the appropriateness of alternative standards in light of contemporary circumstances. That was, of course, the approach used in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), to evaluate that issue with regard to Fourteenth Amendment racial discrimination claims. 28 See n. 23, supra. 29 Rice v. Elmore, 165 F.2d 387 (1947), cert. denied, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151 (1948), and Baskin v. Brown, 174 F.2d 391 (1949). 30 See nn. 20, 21, supra, and accompanying text. 31 The Court stated: "A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." 426 U.S., at 248, 96 S.Ct., at 2051. See n. 20, supra. 32 Even if a municipal policy is shown to dilute the right to vote, however, the policy will not be struck down if the city shows that it serves highly important local interests and is closely tailored to effectuate only those interests. See Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Cf. Abate v. Mundt, 403 U.S. 182, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1971). 33 In my view, the standard of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), see n. 7, supra, and accompanying text, is the proper test under both the Fourteenth and Fifteenth Amendments for determining whether a districting scheme has the unconstitutional effect of diluting the Negro vote. It is plain that the District Court in both of the cases before us made the "intensely local appraisal" necessary under White, supra, at 769, 93 S.Ct., at 2341, and correctly decided that the at-large electoral schemes for the Mobile City Commission and County School Board violated the White standard. As I earlier note with respect to No. 77-1844, see supra, at 122-123, 100 S.Ct., at 1530, the District Court determined: (1) that Mobile Negroes still suffered pervasive present effects of massive historical official and private discrimination; (2) that the City Commission and County School Board had been quite unresponsive to the needs of the minority community; (3) that no Negro had ever been elected to either body, despite the fact that Negroes constitute about one-third of the electorate; (4) that the persistence of severe racial bloc voting made it highly unlikely that any Negro could be elected at large to either body in the foreseeable future; and (5) that no state policy favored at-large elections, and the local preference for that scheme was outweighed by the fact that the unconstitutional vote dilution could be corrected only by the imposition of single-member districts. Bolden v. City of Mobile, 423 F.Supp. 384 (SD Ala.1976); Brown v. Moore, 428 F.Supp. 1123 (SD Ala.1976). The Court of Appeals affirmed these findings in all respects. Bolden v. City of Mobile, 571 F.2d 238 (CA5 1978); Brown v. Moore, 575 F.2d 298 (CA5 1978). See also the dissenting opinion of my Brother WHITE, ante, p. 94, 100 S.Ct., p. 1514. 34 The statutes providing for at-large election of the members of the two governmental bodies involved in these cases, see n. 33, supra, have been in effect since the days when Mobile Negroes were totally disenfranchised by the Alabama Constitution of 1901. The District Court in both cases found, therefore, that the at-large schemes could not have been adopted for discriminatory purposes. Bolden v. City of Mobile, 423 F.Supp., at 386, 397; Brown v. Moore, 428 F.Supp., at 1126-1127, 1138. The issue is, then, whether officials have maintained these electoral systems for discriminatory purposes. Cf. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 257-258, 267-271, and n. 17, 97 S.Ct., at 559, 564-566, and n. 17. 35 As the dissenting opinion of my Brother WHITE demonstrates, however, the facts of these cases compel a finding of unconstitutional vote dilution even under the plurality's standard. 36 Indeed, the District Court in the present cases concluded that the evidence supported the plaintiffs' position that unconstitutional vote dilution was the natural and foreseeable consequence of the maintenance of the challenged multimember districting. Brown v. Moore, 428 F.Supp., at 1138; Bolden v. City of Mobile, 423 F.Supp., at 397-398. 37 Mr. Justice STEVENS acknowledges that both discriminatory intent and discriminatory effect are present in No. 77-1844. See ante, at 92-94, 100 S.Ct. at 1513-1514. Nonetheless, he finds no constitutional violation, apparently because he believes that the electoral structure of Mobile conforms to a commonly used scheme, the discriminatory impact is in his view not extraordinary, and the structure is supported by sufficient noninvidious justifications so that it is neither wholly irrational nor entirely motivated by discriminatory animus. To him, racially motivated decisions in this setting are an inherent part of the political process and do not involve invidious discrimination. The facts of the present cases, however, indicate that in Mobile considerations of race are far more powerful and pernicious than are considerations of other divisive aspects of the electorate. See at 122-123, supra. In Mobile, as elsewhere, "the experience of Negroes . . . has been different in kind, not just in degree, from that of other ethnic groups." University of California Regents v. Bakke, 438 U.S. 265, 400, 98 S.Ct. 2733, 2805, 57 L.Ed.2d 750 (1978) (opinion of MARSHALL, J.). An approach that accepts intentional discrimination against Negroes as merely an aspect of "politics as usual" strikes at the very hearts of the Fourteenth and Fifteenth Amendments. 38 Brest, The Supreme Court, 1975 Term—Forword: In Defense of the Antidiscrimination Principle, 90 Harv.L.Rev. 1, 7 (1976). See also Note, Racial Vote Dilution in Multimember Districts: The Constitutional Standard After Washington v. Davis, 76 Mich.L.Rev. 694, 716-719 (1978). 39 The plurality, ante, at 74-75, n. 21, 100 S.Ct., at 1504, n. 21, indicates that on remand the lower courts are to examine the evidence in these cases under the discriminatory-intent standard of Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), and may conclude that this test is met by proof of the refusal of Mobile's state-legislative delegation to stimulate the passage of legislation changing Mobile's city government into a mayor-council system in which council members are elected from single-member districts. The plurality concludes, then, only that the District Court and the Court of Appeals in each of the present cases evaluated the evidence under an improper legal standard, and not that the evidence fails to support a claim under Feeney, supra. When the lower courts examine these cases under the Feeney standard, they should, of course, recognize the relevancy of the plaintiffs' evidence that vote dilution was a foreseeable and natural consequence of the maintenance of the challenged multimember districting, and that officials have apparently exhibited selective racial sympathy and indifference. Cf. Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979); Columbus Board of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979). Finally, it is important not to confuse the differing views the plurality and I have on the elements of proving unconstitutional vote dilution. The plurality concludes that proof of intentional discrimination, as defined in Feeney, supra, is necessary to support such a claim. The plurality finds this requirement consistent with the statement in White v. Regester, 412 U.S., at 766, 93 S.Ct., at 2339, that unconstitutional vote dilution does not occur simply because a minority has not been able to elect representatives in proportion to its voting potential. The extra necessary element, according to the plurality, is a showing of discriminatory intent. In the plurality's view, the evidence presented in White going beyond mere proof of under-representation of the minority properly supported an inference that the multimember districting scheme in question was tainted with a discriminatory purpose. The plurality's approach should be satisfied, then, by proof that an electoral scheme enacted with a discriminatory purpose effected a retrogression in the minority's voting power. Cf. Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1363, 47 L.Ed.2d 629 (1976). The standard should also be satisfied by proof that a scheme maintained for a discriminatory purpose has the effect of submerging minority electoral influence below the level it would have under a reasonable alternative scheme. The plurality does not address the question whether proof of discriminatory-effect is necessary to support a vote-dilution claim. It is clear from the above, however, that if the Court at some point creates such a requirement, it would be satisfied by proof of mere disproportionate impact. Such a requirement would be far less stringent than the burden of proof required under the rather rigid discriminatory effects test I find in White v. Regester, supra. See n. 7, supra, and accompanying text.

12

446 U.S. 156 100 S.Ct. 1548 64 L.Ed.2d 119 CITY OF ROME et al., Appellants,v.UNITED STATES et al. No. 78-1840. Argued Oct. 10, 1979. Decided April 22, 1980. Rehearing Denied June 9, 1980. See 447 U.S. 916, 100 S.Ct. 3003. Syllabus In 1966, appellant city of Rome, Ga., made certain changes in its electoral system, including provisions for majority rather than plurality vote for each of the nine members of the City Commission; for three numbered posts within each of the three (reduced from nine) wards; and for staggered terms for the commissioners and for members of the Board of Education from each ward; and a requirement that members of the Board reside in the wards from which they were elected. In addition, the city made 60 annexations between November 1, 1964, and February 10, 1975. Section 5 of the Voting Rights Act of 1965 (Act) requires preclearance by the Attorney General of the United States or the United States District Court for the District of Columbia of any change in a "standard, practice, or procedure with respect to voting" made after November 1, 1964, by jurisdictions that fall within the coverage formula set forth in § 4(b) of the Act. Section 5 further provides that the Attorney General may clear a voting practice only if it "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." Georgia was designated a covered jurisdiction in 1965, and the municipalities of that State accordingly must comply with the preclearance procedure. Eventually, after at first having failed to do so, Rome submitted the annexations and the 1966 electoral changes for preclearance, but the Attorney General declined to preclear the above-enumerated electoral changes, concluding that in a city such as Rome, in which the population is predominately white and racial bloc voting has been common, such electoral changes would deprive Negro voters of the opportunity to elect a candidate of their choice. The Attorney General also refused to preclear 13 of the 60 annexations, finding that the city had not carried its burden of proving that the disapproved annexations would not dilute the Negro vote. Subsequently, however, in response to the city's motion for reconsideration, the Attorney General agreed to preclear the 13 annexations for Board of Education elections but still refused to preclear them for City Commission elections. The city and two of its officials then filed a declaratory judgment action in the United States District Court for the District of Columbia, seeking relief from the Act based on a varietyof claims. A three-judge court rejected the city's arguments and granted summary judgment for the defendants, finding that the disapproved electoral changes and annexations, while not made for any discriminatory purpose, did have a discriminatory effect. The court refused to allow the city to "bail out" of the Act's coverage pursuant to § 4(a), which allows a covered jurisdiction to escape § 5's preclearance requirement by bringing a declaratory judgment action and proving that no "test or device" has been used in the jurisdiction during the 17 years preceding the filing of the action "for the purpose or with the effect of denying or abridging the right to vote on account of race or color." Held: 1. The city may not use § 4(a)'s "bailout" procedure. In § 4(a)'s terms, the issue depends on whether the city is either a "State with respect to which the determinations have been made" under § 4(b) or a "political subdivision with respect to which such determinations have been made as a separate unit," and here the city fails to meet the definition of either term, since § 4(b)'s coverage formula has never been applied to it. The city comes within the Act only because it is part of a covered State, and, hence, any "bailout" action to exempt the city must be filed by, and seek to exempt all of, the State. Moreover, the legislative history precludes any argument that § 4(a)'s "bailout" procedure, made available to a covered "State," was also implicitly made available to political units in the State. Pp. 162-169. 2. The 60-day period under the Attorney General's regulation requiring requests for reconsideration of his refusal to preclear electoral changes to be decided within 60 days of their receipt, commences anew when the submitting jurisdiction deems its initial submission on a reconsideration motion to be inadequate and decides to supplement it. Thus, here, where the city, less than 60 days prior to the Attorney General's decision on the city's reconsideration motion, submitted, on its own accord, affidavits to supplement the motion, the Attorney General's response was timely. A contrary ruling that the 60-day period ran continuously from the date of the initial submission of the reconsideration motion would mean that the Attorney General would, in some cases, be unable to give adequate consideration to materials submitted in piecemeal fashion, and might be able to respond only by denying the reconsideration motion. Pp. 170-172. 3. By describing in § 5 the elements of discriminatory purpose and effect in the conjunctive, Congress plainly intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent. Furthermore, Congress recognized this when, in 1975, it extended the Act for another seven years. Pp. 172-173. 4. The Act does not exceed Congress' power to enforce the Fifteenth Amendment. Under s. 2 of that Amendment, Congress may prohibit practices that in an of themselves do not violate s. 1 of the Amendment, so long as the prohibitions attacking racial discrimination in voting are 'appropriate.' Here, the Act's ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the Fifteenth Amendment's purposes, even if it is assumed that s. 1 prohibits only intentional discrimination in voting. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769. Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create a risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact. Pp. 173-178. 5. The Act does not violate principles of federalism. Principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments "by appropriate legislation," Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614, such Amendments being specifically designed as an expansion of federal power and an intrusion on state sovereignty. Accordingly, Congress had the authority to regulate state and local voting through the provisions of the Act. Pp. 178-180. 6. There is no merit to appellants' contention that the Act and its preclearance requirement had outlived their usefulness by 1975, when Congress extended the Act for another seven years. In view of Congress' considered determination that at least another seven years of statutory remedies were necessary to counter the perpetuation of 95 years of pervasive voting discrimination, the extension of the Act was plainly a constitutional method of enforcing the Fifteenth Amendment. Pp. 180-182. 7. Nor is there any merit to the individual appellants' argument that, because no elections have been held in appellant city since 1974, their First, Fifth, Ninth, and Tenth Amendment rights as private citizens of the city have been abridged. Under circumstances where, upon the Attorney General's refusal to preclear the electoral changes, the city could have conducted elections under its prior electoral scheme, the city's failure to hold elections can only be attributed to its own officials, and not the operation of the Act. Pp. 182-183. 8. The District Court's findings that the city had failed to prove that the 1966 electoral changes and the annexations disapproved by the Attorney General did not have a discriminatory effect are not clearly erroneous. Pp. 183-187. 450 F.Supp. 378 and 472 F.Supp. 221, affirmed. Robert M. Brinson, Rome, Ga., for appellants. Lawrence G. Wallace, Washington, D. C., for appellees. Mr. Justice MARSHALL delivered the opinion of the Court. 1 At issue in this case is the constitutionality of the Voting Rights Act of 1965 and its applicability to electoral changes and annexations made by the city of Rome, Ga. 2 * This is a declaratory judgment action brought by appellant city of Rome, a municipality in northwestern Georgia, under the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973 et seq. In 1970 the city had a population of 30,759, the racial composition of which was 76.6% white and 23.4% Negro. The voting-age population in 1970 was 79.4% white and 20.6% Negro. 3 The governmental structure of the city is established by a charter enacted in 1918 by the General Assembly of Georgia. Before the amendments at issue in this case, Rome's city charter provided for a nine-member City Commission and a five-member Board of Education to be elected concurrently on an at-large basis by a plurality of the vote. The city was divided into nine wards, with one city commissioner from each ward to be chosen in the citywide election. There was no residency requirement for Board of Education candidates. 4 In 1966, the General Assembly of Georgia passed several laws of local application that extensively amended the electoral provisions of the city's charter. These enactments altered the Rome electoral scheme in the following ways: 5 (1) the number of wards was reduced from nine to three; 6 (2) each of the nine commissioners would henceforth be elected at-large to one of three numbered posts established within each ward; 7 (3) each commissioner would be elected by majority rather than plurality vote, and if no candidate for a particular position received a majority, a runoff election would be held between the two candidates who had received the largest number of votes; 8 (4) the terms of the three commissioners from each ward would be staggered; 9 (5) the Board of Education was expanded from five to six members; 10 (6) each Board member would be elected at large, by majority vote, for one of two numbered posts created in each of the three wards, with runoff procedures identical to those applicable to City Commission elections; 11 (7) Board members would be required to reside in the wards from which they were elected; 12 (8) the terms of the two members from each ward would be staggered. 13 Section 5 of the Voting Rights Act of 1965 requires preclearance by the Attorney General or the United States District Court for the District of Columbia of any change in a "standard, practice, or procedure with respect to voting," 42 U.S.C. § 1973c, made after November 1, 1964, by jurisdictions that fall within the coverage formula set forth in § 4(b) of the Act, 42 U.S.C. § 1973b(b). In 1965, the Attorney General designated Georgia a covered jurisdiction under the Act, 30 Fed.Reg. 9897, and the municipalities of that State must therefore comply with the preclearance procedure, United States v. Board of Commissioners of Sheffield, Ala., 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978). 14 It is not disputed that the 1966 changes in Rome's electoral system were within the purview of the Act. E. g., Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). Nonetheless, the city failed to seek preclearance for them. In addition, the city did not seek preclearance for 60 annexations made between November 1, 1964, and February 10, 1975, even though required to do so because an annexation constitutes a change in a "standard, practice" or procedure with respect to voting" under the Act, Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). 15 In June 1974, the city did submit one annexation to the Attorney General for preclearance. The Attorney General discovered that other annexations had occurred, and, in response to his inquiries, the city submitted all the annexations and the 1966 electoral changes for preclearance. The Attorney General declined to preclear the provisions for majority vote, numbered posts, and staggered terms for City Commission and Board of Education elections, as well as the residency requirement for Board elections. He concluded that in a city such as Rome, in which the population is predominately white and racial bloc voting has been common, these electoral changes would deprive Negro voters of the opportunity to elect a candidate of their choice. The Attorney General also refused to preclear 13 of the 60 Annexations in question. He found that the disapproved annexations either contained predominately white populations of significant size or were near predominately white areas and were zoned for residential subdivision development. Considering these factors in light of Rome's at-large electoral scheme and history of racial bloc voting, he determined that the city had not carried its burden of proving that the annexations would not dilute the Negro vote. 16 In response to the city's motion for reconsideration, the Attorney General agreed to clear the 13 annexations for School Board elections. He reasoned that his disapproval of the 1966 voting changes had resurrected the pre-existing electoral scheme and that the revivified scheme passed muster under the Act. At the same time, he refused to clear the annexations for City Commission elections because, in his view, the residency requirement for City Commission contained in the pre-existing electoral procedures could have a discriminatory effect. 17 The city and two of its officials then filed this action, seeking relief from the Act based on a variety of claims. A three-judge court, convened pursuant to 42 U.S.C. §§ 1973b(a) and 1973c, rejected the city's arguments and granted summary judgment for the defendants. 472 F.Supp. 221 (D.C.1979). We noted probable jurisdiction, 443 U.S. 914, 99 S.Ct. 3105, 61 L.Ed.2d 878 (1979), and now affirm. II 18 We must first address the appellants' assertion that, for two reasons, this Court may avoid reaching the merits of this action. A. 19 The appellants contend that the city may exempt itself from the coverage of the Act. To evaluate this argument, we must examine the provisions of the Act in some detail. 20 Section 5 of the Act requires that a covered jurisdiction that wishes to enact any "standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964," must seek preclearance from the Attorney General or the United States District Court for the District of Columbia. 79 Stat. 439, as amended, 42 U.S.C. § 1973c.1 Section 4(a) of the Act, 79 Stat. 438, as amended, 42 U.S.C. § 1973b(a),2 provides that the preclearance requirement of § 5 is applicable to "any State" that the Attorney General has determined qualifies under the coverage formula of § 4(b), 42 U.S.C. § 1973b(b),3 and to "any political subdivision with respect to which such determinations have been made as a separate unit." As we have noted, the city of Rome comes within the preclearance requirement because it is a political unit in a covered jurisdiction, the State of Georgia. United States v. Board of Commissioners of Sheffield, Ala., 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978). 21 Section 4(a) also provides, however, a procedure for exemption from the Act. This so-called "bailout" provision allows a covered jurisdiction to escape the preclearance requirement of § 5 by bringing a declaratory judgment action before a three-judge panel of the United States District Court for the District of Columbia and proving that no "test or device"4 has been used in the jurisdiction "during the seventeen years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color." The District Court refused to allow the city to "bail out" of the Act's coverage, holding that the political units of a covered jurisdiction cannot independently bring a § 4(a) bailout action. We agree. 22 In the terms of § 4(a), the issue turns on whether the city is, for bailout purposes, either a "State with respect to which the determinations have been made under the third sentence of subsection (b) of this section" or a "political subdivision with respect to which such determinations have been made as a separate unit," the "determinations" in each instance being the Attorney General's decision whether the jurisdiction falls within the coverage formula of § 4(b). On the face of the statute, the city fails to meet the definition for either term, since the coverage formula of § 4(b) has never been applied to it. Rather, the city comes within the Act because it is part of a covered State. Under the plain language of the statute, then, it appears that any bailout action to exempt the city must be filed by, and seek to exempt all of, the State of Georgia. 23 The appellants seek to avoid this conclusion by relying on our decision in United States v. Board of Commissioners of Sheffield, Ala., supra. That decision, however, did not even discuss the bailout process. InSheffield, the Court held that when the Attorney General determines that a State falls within the coverage formula of § 4(b), any political unit of the State must preclear new voting procedures under § 5 regardless of whether the unit registers voters and therefore would otherwise come within the Act as a "political subdivision."5 In so holding, the Court necessarily determined that the scope of §§ 4(a) and 5 is "geographic" or "territorial," 435 U.S., at 120, 126, 98 S.Ct., at 973, 976, and thus that, when an entire State is covered, it is irrelevant whether political units of it might otherwise come under § 5 as "political subdivisions." 435 U.S., at 126-129, 98 S.Ct. at 976-978. 24 Sheffield, then, did not hold that cities such as Rome are "political subdivisions" under §§ 4 and 5. Thus, our decision in that case is in no way inconsistent with our conclusion that, under the express statutory language, the city is not a "political subdivision" for purposes of § 4(a) "bailout." 25 Nor did Sheffield suggest that a municipality in a covered State is itself a "State" for purposes of the § 4(a) exemption procedure. Sheffield held that, based on the structure and purposes of the Act, the legislative history, and the contemporaneous interpretation of the Attorney General, the ambiguities of §§ 4(a) and 5 should be resolved by holding that § 5's preclearance requirement for electoral changes by a covered "State" reached all such changes made by political units in that State. See 435 U.S., at 117-118, 98 S.Ct., at 972. By contrast, in this case the legislative history precludes any argument that § 4(a)'s bailout procedure, made available to a covered "State," was also implicitly made available to political units in the State. The House Committee Report stated: 26 "This opportunity to obtain exemption is afforded only to those States or to those subdivisions as to which the formula has been determined to apply as a separate unit; subdivisions within a State which is covered by the formula are not afforded the opportunity for separate exemption." H.R.Rep.No. 439, 89th Cong., 1st Sess., 14 (1965), U.S.Code Cong. & Admin.News 1965, pp. 2437, 2445. 27 The Senate Committee's majority Report is to the same effect: 28 "We are also of the view that an entire State covered by the test and device prohibition of section 4 must be able to lift the prohibition if any part of it is to be relieved from the requirements of section 4." S.Rep.No. 162, 89th Cong., 1st Sess., pt. 3, p. 16 (1965), U.S.Code Cong. & Admin.News 1965, pp. 2437, 2554. 29 See also id., at 21. Bound by this unambiguous congressional intent, we hold that the city of Rome may not use the bailout procedure of § 4(a).6 B 30 The appellants next argue that its electoral changes have been precleared because of allegedly tardy action by the Attorney General. On May 21, 1976, the city asked the Attorney General to reconsider his refusal to preclear the electoral changes and the 13 annexations. On July 13, 1976, upon its own accord, the city submitted two additional affidavits. The Attorney General denied the motion to reconsider on August 12, 1976. 31 Section 5 of the Act provides that the Attorney General must interpose objections to original submissions within 60 days of their filing.7 If the Attorney General fails to make a timely objection, the voting practices submitted become fully enforceable. By regulation, the Attorney General has provided that requests for reconsideration shall also be decided within 60 days of their receipt. 28 CFR § 51.3(d) (1979).8 If in the present case the 60-day period for reconsideration is computed as running continuously from May 24, the date of the initial submission of the reconsideration motion, the period expired before the Attorney General made his August 12 response. In contrast, if the period is measured from July 14, the date the city supplemented its request, the Attorney General's response was timely. 32 The timing provisions of both the Act and the regulations are silent on the effect of supplements to requests for reconsideration. We agree with the Attorney General that the purposes of the Act and its implementing regulations would be furthered if the 60-day period provided by 28 CFR § 51.3(d) were interpreted to commence anew when additional information is supplied by the submitting jurisdiction on its own accord. 33 The logic of Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973), indicates that the Government's approach fully comports with the Act and regulations. In that case, the Court examined a regulation of the Attorney General, 28 CFR § 51.18(a), that provided that § 5's mandatory 60-day period for consideration of original submissions is tolled whenever the Attorney General finds it necessary to request additional information from the submitting jurisdiction. Under the regulation, the 60-day period commences anew when the jurisdiction in question furnishes the requested information to the Attorney General. The Court upheld the regulation, holding that it was "wholly reasonable and consistent with the Act." 411 U.S., at 541, 93 S.Ct., at 1711. 34 Georgia v. United States stands for the proposition that the purposes of the Act are furthered if, once all information relevant to a submission is placed before the Attorney General, the Attorney General is accorded the full 60-day period provided by law in which to make his "difficult and complex" decision, id., at 540, 93 S.Ct., at 1710. It follows, then, that when the submitting jurisdiction deems its initial submission on a reconsideration motion to be inadequate and decides to supplement it, as the city of Rome did in the present case, the 60-day period under 28 CFR § 51.3(d) is commenced anew. A contrary ruling would mean that the Attorney General would, in some cases, be unable to give adequate consideration to materials submitted in piecemeal fashion. In such circumstances, the Attorney General might be able to respond only by denying the reconsideration motion. Such a result would run counter to the purposes of the Act and regulations, since it would penalize submitting jurisdictions that have legitimate reasons to file supplementary materials.9 III 35 The appellants raise five issues of law in support of their contention that the Act may not properly be applied to the electoral changes and annexations disapproved by the Attorney General. A. 36 The District Court found that the disapproved electoral changes and annexations had not been made for any discriminatory purpose, but did have a discriminatory effect. The appellants argue that § 5 of the Act may not be read as prohibiting voting practices that have only a discriminatory effect. The appellants do not dispute that the plain language of § 5 commands that the Attorney General may clear a practice only if it "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c (emphasis added). By describing the elements of discriminatory purpose and effect in the conjunctive, Congress plainly intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent. Our decisions have consistently interpreted § 5 in this fashion. Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1363, 47 L.Ed.2d 629 (1976); City of Richmond v. United States, 422 U.S. 358, 372, 95 S.Ct. 2296, 2304, 45 L.Ed.2d 245 (1975); Georgia v. United States, supra, at 538, 93 S.Ct., at 1709; Perkins v. Matthews, 400 U.S. 379, 387, 388, 91 S.Ct. 431, 436, 27 L.Ed.2d 476 (1971). Furthermore, Congress recognized that the Act prohibited both discriminatory purpose and effect when, in 1975, it extended the Act for another seven years. S.Rep.No.94-295, pp. 15-16 (1975) (hereinafter S.Rep.); H.R.Rep.No.94-196, pp. 8-9 (1975) (hereinafter H.R.Rep.), U.S.Code Cong. & Admin.News 1975, p. 774. 37 The appellants urge that we abandon this settled interpretation because in their view § 5, to the extent that it prohibits voting changes that have only a discriminatory effect, is unconstitutional. Because the statutory meaning and congressional intent are plain, however, we are required to reject the appellants' suggestion that we engage in a saving construction and avoid the constitutional issues they raise. See, e. g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501, 99 S.Ct. 1313, 1318-1319, 59 L.Ed.2d 533 (1979); id., at 508-511, 99 S.Ct., at 1323-1324 (BRENNAN, J., dissenting). Instead, we now turn to their constitutional contentions. B 38 Congress passed the Act under the authority accorded it by the Fifteenth Amendment.10 The appellants contend that the Act is unconstitutional because it exceeds Congress' power to enforce that Amendment. They claim that § 1 of the Amendment prohibits only purposeful racial discrimination in voting, and that in enforcing that provision pursuant to § 2, Congress may not prohibit voting practices lacking discriminatory intent even if they are discriminatory in effect. We hold that, even if § 1 of the Amendment prohibits only purposeful discrimination,11 the prior decisions of this Court foreclose any argument that Congress may not, pursuant to § 2, outlaw voting practices that are discriminatory in effect. 39 The appellants are asking us to do nothing less than overrule our decision in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), in which we upheld the constitutionality of the Act. The Court in that case observed that, after making an extensive investigation, Congress had determined that its earlier attempts to remedy the "insidious and pervasive evil" of racial discrimination in voting had failed because of "unremitting and ingenious defiance of the Constitution" in some parts of this country. Id., at 309, 86 S.Ct., at 808. Case-by-case adjudication had proved too ponderous a method to remedy voting discrimination, and, when it had produced favorable results, affected jurisdictions often "merely switched to discriminatory devices not covered by the federal decrees." Id., at 314, 86 S.Ct., at 811. In response to its determination that "sterner and more elaborate measures" were necessary, id., at 309, 86 S.Ct., at 808, Congress adopted the Act, a "complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant," id., at 315, 86 S.Ct., at 812. 40 The Court then turned to the question whether the Fifteenth Amendment empowered Congress to impose the rigors of the Act upon the covered jurisdictions. The Court examined the interplay between the judicial remedy created by § 1 of the Amendment and the legislative authority conferred by § 2: 41 "By adding this authorization [in § 2], the Framers indicated that Congress was to be chiefly responsible for implementing the rights created in § 1. 'It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the [Civil War] amendments fully effective.' Ex parte Virginia, 100 U.S. 339, 345 [, 25 L.Ed. 676]. Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting." 383 U.S., at 325-326, 86 S.Ct., at 817 (emphasis in original). 42 Congress' authority under § 2 of the Fifteenth Amendment, we held, was no less broad than its authority under the Necessary and Proper Clause, see McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819). This authority, as applied by longstanding precedent to congressional enforcement of the Civil War Amendments, is defined in these terms: 43 " 'Whatever legislation is appropriate, that is, adapted to carry out the objects the [Civil War] amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.' Ex parte Virginia, 100 U.S. [339,] 345-346 [, 25 L.Ed. 676]." South Carolina v. Katzenbach, supra, 383 U.S., at 327, 86 S.Ct., at 818. 44 Applying this standard, the Court held that the coverage formula of § 4(b), the ban on the use of literacy tests and related devices, the requirement that new voting rules must be precleared and must lack both discriminatory purpose and effect, and the use of federal examiners were all appropriate methods for Congress to use to enforce the Fifteenth Amendment. 383 U.S., at 329-337, 86 S.Ct., at 819-823. 45 The Court's treatment in South Carolina v. Katzenbach of the Act's ban on literacy tests demonstrates that, under the Fifteenth Amendment, Congress may prohibit voting practices that have only a discriminatory effect. The Court had earlier held in Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), that the use of a literacy test that was fair on its face and was not employed in a discriminatory fashion did not violate § 1 of the Fifteenth Amendment. In upholding the Act's per se ban on such tests in South Carolina v. Katzenbach, the Court found no reason to overrule Lassiter. Instead, the Court recognized that the prohibition was an appropriate method of enforcing the Fifteenth Amendment because for many years most of the covered jurisdictions had imposed such tests to effect voting discrimination and the continued use of even nondiscriminatory, fairly administered literacy tests would "freeze the effect" of past discrimination by allowing white illiterates to remain on the voting rolls while excluding illiterate Negroes. South Carolina v. Katzenbach, supra, at 334, 86 S.Ct., at 821. This holding makes clear that Congress may, under the authority of § 2 of the Fifteenth Amendment, prohibit state action that, though in itself not violative of § 1, perpetuates the effects of past discrimination. 46 Other decisions of this Court also recognize Congress' broad power to enforce the Civil War Amendments. In Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), the Court held that legislation enacted under authority of § 5 of the Fourteenth Amendment12 would be upheld so long as the Court could find that the enactment " 'is plainly adapted to [the] end' " of enforcing the Equal Protection Clause and "is not prohibited by but is consistent with 'the letter and spirit of the constitution,' " regardless of whether the practices outlawed by Congress in themselves violated the Equal Protection Clause. 384 U.S., at 651, 86 S.Ct., at 1724 (quoting McCulloch v. Maryland, supra, at 421). The Court stated that, "[c]orrectly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment." 384 U.S., at 651, 86 § Ct., at 1724. Four years later, in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), the Court unanimously upheld a provision of the Voting Rights Act Amendments of 1970, Pub.L.91-285, 84 Stat. 314, imposing a 5-year nationwide ban on literacy tests and similar requirements for registering to vote in state and federal elections. The Court concluded that Congress could rationally have determined that these provisions were appropriate methods of attacking the perpetuation of earlier, purposeful racial discrimination, regardless of whether the practices they prohibited were discriminatory only in effect. See 400 U.S., at 132-133, 91 S.Ct., at 268-269 (opinion of Black, J.); id., at 144-147, 91 S.Ct., at 274-276 (opinion of Douglas, J.); id., at 216-217, 91 S.Ct., at 311 (opinion of Harlan, J.); id., at 231-236, 91 S.Ct., at 318-320 (opinion of BRENNAN, WHITE, and MARSHALL, JJ.); id., at 282-284, 91 S.Ct., at 343-344 (opinion of STEWART, J., joined by BURGER, C. J., and BLACKMUN, J.).13 47 It is clear, then, that under § 2 of the Fifteenth Amendment Congress may prohibit practices that in and of themselves do not violate § 1 of the Amendment, so long as the prohibitions attacking racial discrimination in voting are "appropriate," as that term is defined in McCulloch v. Maryland andEx parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). In the present case, we hold that the Act's ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the Fifteenth Amendment, even if it is assumed that § 1 of the Amendment prohibits only intentional discrimination in voting. Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination,14 it was proper to prohibit changes that have a discriminatory impact. See South Carolina v. Katzenbach, 383 U.S., at 335, 86 S.Ct., at 822; Oregon v. Mitchell, supra, 400 U.S., at 216, 91 S.Ct., at 311 (opinion of Harlan, J.). We find no reason, then, to disturb Congress' considered judgment that banning electoral changes that have a discriminatory impact is an effective method of preventing States from " 'undo[ing] or defeat[ing] the rights recently won' by Negroes." Beer v. United States, 425 U.S., at 140, 96 S.Ct., at 1363 (quoting H.R.Rep.No.91-397, p. 8 (1969)). C 48 The appellants next assert that, even if the Fifteenth Amendment authorized Congress to enact the Voting Rights Act, that legislation violates principles of federalism articulated in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). This contention necessarily supposes that National League of Cities signifies a retreat from our decision in South Carolina v. Katzenbach, supra, where we rejected the argument that the Act "exceed[s] the powers of Congress and encroach[es] on an area reserved to the States by the Constitution," 383 U.S., at 323, 86 S.Ct., at 816, and determined that, "[a]s against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting," id., at 324, 86 S.Ct., at 816. To the contrary, we find no inconsistency between these decisions. 49 In National League of Cities, the Court held that federal legislation regulating minimum wages and hours could not constitutionally be extended to employees of state and local governments. The Court determined that the Commerce Clause did not provide Congress the authority to enact legislation "directly displac[ing] the States' freedom to structure integral operations in areas of traditional governmental functions," 426 U.S., at 852, 96 S.Ct., at 2474, which, it held, included employer-employee relationships in programs traditionally conducted by States, id., at 851-852, 96 S.Ct., at 2474. 50 The decision in National League of Cities was based solely on an assessment of congressional power under the Commerce Clause, and we explicitly reserved the question "whether different results might obtain if Congress seeks to affect integral operations of state governments by exercising authority granted it under other sections of the Constitution such as . . . § 5 of the Fourteenth Amendment." Id., at 852, n. 17, 96 S.Ct., at 2474, n. 17. The answer to this question came four days later in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). That case presented the issue whether, in spite of the Eleventh Amendment, Congress had the authority to bring the States as employers within the coverage of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and to provide that successful plaintiffs could recover retroactive monetary relief. The Court held that this extension of Title VII was an appropriate method of enforcing the Fourteenth Amendment: 51 "[W]e think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, . . . are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce 'by appropriate legislation' the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority." Fitzpatrick v. Bitzer, supra, at 456, 96 S.Ct., at 2671. 52 We agree with the court below that Fitzpatrick stands for the proposition that principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments "by appropriate legislation." Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty. Applying this principle, we hold that Congress had the authority to regulate state and local voting through the provisions of the Voting Rights Act.15 National League of Cities, then, provides no reason to depart from our decision in South Carolina v. Katzenbach that "the Fifteenth Amendment supersedes contrary exertions of state power," 383 U.S., at 325, 86 S.Ct., at 817, and that the Act is "an appropriate means for carrying out Congress' constitutional responsibilities," id., at 308, 86 S.Ct., at 808.16 D 53 The appellants contend in the alternative that, even if the Act and its preclearance requirement were appropriate means of enforcing the Fifteenth Amendment in 1965, they had outlived their usefulness by 1975, when Congress extended the Act for another seven years. We decline this invitation to overrule Congress' judgment that the 1975 extension was warranted. 54 In considering the 1975 extension, Congress acknowledged that largely as a result of the Act, Negro voter registration had improved dramatically since 1965. H.R.Rep., at 6; S.Rep., at 13. Congress determined, however, that "a bleaker side of the picture yet exists." H.R.Rep., at 7; S.Rep., at 13, U.S.Code Cong. & Admin.News 1975 at 779. Significant disparity persisted between the percentages of whites and Negroes registered in at least several of the covered jurisdictions. In addition, though the number of Negro elected officials had increased since 1965, most held only relatively minor positions, none held statewide office, and their number in the state legislatures fell far short of being representative of the number of Negroes residing in the covered jurisdictions. Congress concluded that, because minority political progress under the Act, though "undeniable," had been "modest and spotty," extension of the Act was warranted. H.R.Rep., at 7-11; S.Rep., at 11-19. 55 Congress gave careful consideration to the propriety of readopting § 5's preclearance requirement. It first noted that "[i]n recent years the importance of this provision has become widely recognized as a means of promoting and preserving minority political gains in covered jurisdictions." H.R.Rep., at 8; S.Rep., at 15, U.S.Code Cong. & Admin.News 1975 at 781. After examining information on the number and types of submissions made by covered jurisdictions and the number and nature of objections interposed by the Attorney General, Congress not only determined that § 5 should be extended for another seven years, it gave that provision this ringing endorsement: 56 "The recent objections entered by the Attorney General . . . to Section 5 submissions clearly bespeak the continuing need for this preclearance mechanism. As registration and voting of minority citizens increases [sic ], other measures may be resorted to which would dilute increasing minority voting strength. 57 * * * * * 58 "The Committee is convinced that it is largely Section 5 which has contributed to the gains thus far achieved in minority political participation, and it is likewise Secton [sic ] 5 which serves to insure that that progress not be destroyed through new procedures and techniques. Now is not the time to remove those preclearance protections from such limited and fragile success." H.R.Rep., at 10-11. 59 See also S.Rep., at 15-19, U.S.Code Cong. & Admin.News 1975 at 782-785. 60 It must not be forgotten that in 1965, 95 years after ratification of the Fifteenth Amendment extended the right to vote to all citizens regardless of race or color, Congress found that racial discrimination in voting was an "insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution." South Carolina v. Katzenbach, 383 U.S., at 309, 86 S.Ct., at 808. In adopting the Voting Rights Act, Congress sought to remedy this century of obstruction by shifting "the advantage of time and inertia from the perpetrators of the evil to its victims." Id., at 328, 86 S.Ct., at 818. Ten years later, Congress found that a 7-year extension of the Act was necessary to preserve the "limited and fragile" achievements of the Act and to promote further amelioration of voting discrimination. When viewed in this light, Congress' considered determination that at least another 7 years of statutory remedies were necessary to counter the perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable. The extension of the Act, then, was plainly a constitutional method of enforcing the Fifteenth Amendment. E 61 As their final constitutional challenge to the Act,17 the individual appellants argue that, because no elections have been held in Rome since 1974, their First, Fifth, Ninth, and Tenth Amendment rights as private citizens of the city have been abridged. In blaming the Act for this result, these appellants identify the wrong culprit. The Act does not restrict private political expression or prevent a covered jurisdiction from holding elections; rather, it simply provides that elections may be held either under electoral rules in effect on November 1, 1964, or under rules adopted since that time that have been properly precleared. When the Attorney General refused to preclear the city's electoral changes, the city had the authority to conduct elections under its electoral scheme in effect on November 1, 1964. Indeed, the Attorney General offered to preclear any technical amendments to the city charter necessary to permit elections under the pre-existing scheme or a modification of that scheme consistent with the Act. In these circumstances, the city's failure to hold elections can only be attributed to its own officials, and not to the operation of the Act. IV 62 Now that we have reaffirmed our holdings in South Carolina v. Katzenbach that the Act is "an appropriate means for carrying out Congress' constitutional responsibilities" and is "consonant with all . . . provisions of the Constitution," 383 U.S., at 308, 86 S.Ct., at 808, we must address the appellants' contentions that the 1966 electoral changes and the annexations disapproved by the Attorney General do not, in fact, have a discriminatory effect. We are mindful that the District Court's findings of fact must be upheld unless they are clearly erroneous. A. 63 We conclude that the District Court did not clearly err in finding that the city had failed to prove that the 1966 electoral changes would not dilute the effectiveness of the Negro vote in Rome.18 The District Court determined that racial bloc voting existed in Rome. It found that the electoral changes from plurality-win to majority-win elections, numbered posts, and staggered terms, when combined with the presence of racial bloc voting and Rome's majority white population and at-large electoral system, would dilute Negro voting strength. The District Court recognized that, under the preexisting plurality-win system, a Negro candidate would have a fair opportunity to be elected by a plurality of the voteif white citizens split their votes among several white candidates and Negroes engage in "single-shot voting" in his favor.19 The 1966 change to the majority vote/runoff election scheme significantly decreased the opportunity for such a Negro candidate since, "even if he gained a plurality of votes in the general election, [he] would still have to face the runner-up white candidate in a head-to-head runoff election in which, given bloc voting by race and a white majority, [he] would be at a severe disadvantage." 472 F.Supp., at 244 (footnotes omitted).20 64 The District Court's further conclusion that the city had failed to prove that the numbered posts, staggered terms, and Board of Education residency provisions would not have the effect of forcing head-to-head contests between Negroes and whites and depriving Negroes of the opportunity to elect a candidate by single-shot voting, id., at 245, is likewise not clearly erroneous.21 The District Court's holdings regarding all of the 1966 electoral changes are consistent with our statement in Beer v. United States, 425 U.S., at 141, 96 S.Ct., at 1364, that "the purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral [process.]" B 65 The District Court also found that the city had failed to meet its burden of proving that the 13 disapproved annexations did not dilute the Negro vote in Rome. The city's argument that this finding is clearly erroneous is severely undermined by the fact that it failed to present any evidence shedding meaningful light on how the annexations affected the vote of Rome's Negro community. 66 Because Rome's failure to preclear any of these annexations caused a delay in federal review and placed the annexations before the District Court as a group, the court was correct in concluding that the cumulative effect of the 13 annexations must be examined from the perspective of the most current available population data. Unfortunately, the population data offered by the city was quite uninformative. The city did not present evidence on the current general population and voting-age population of Rome, much less a breakdown of each population category by race.22 Nor does the record reflect current information regarding the city's registered voters. The record does indicate the number of Negro and white registered voters in the city as of 1975, but it is unclear whether these figures included persons residing in the annexed areas in dispute. 67 Certain facts are clear, however. In February 1978, the most recent date for which any population data were compiled, 2,582 whites and only 52 Negroes resided in the disapproved annexed areas. Of these persons, 1,797 whites and only 24 Negroes were of voting age, and 823 whites and only 9 Negroes were registered voters. We must assume that these persons moved to the annexed areas from outside the city, rather than from within the preannexation boundaries of the city, since the city, which bore the burden of proof, presented no evidence to the contrary. 68 The District Court properly concluded that these annexations must be scrutinized under the Voting Rights Act. See Perkins v. Matthews, 400 U.S., at 388-390, 91 S.Ct., at 437. By substantially enlarging the city's number of white eligible voters without creating a corresponding increase in the number of Negroes, the annexations reduced the importance of the votes of Negro citizens who resided within the preannexation boundaries of the city. In these circumstances, the city bore the burden of proving that its electoral system "fairly reflects the strength of the Negro community as it exists after the annexation[s]." City of Richmond v. United States, 422 U.S., at 371, 95 S.Ct., at 2304. The District Court's determination that the city failed to meet this burden of proof for City Commission elections was based on the presence of three vote-dilutive factors: the at-large electoral system, the residency requirement for officeholders, and the high degree of racial bloc voting. Particularly in light of the inadequate evidence introduced by the city, this determination cannot be considered to be clearly erroneous. 69 The judgment of the District Court is affirmed. 70 It is so ordered. 71 Mr. Justice BLACKMUN, concurring. 72 I join the Court's opinion but write separately to state my understanding of the effect of the holding in Part IV-B. The Court there affirms, as not clearly erroneous, the District Court's determination that the city of Rome failed to meet its burden of disproving that the 13 disputed annexations had a discriminatory effect. That issue, for me, is close, but I accept the District Court's ruling. The holding, however, does seem to have the anomalous result of leaving the voters residing in those annexed areas within the jurisdiction of Rome's Board of Education, but outside the jurisdiction of its City Commission.* As the appellees point out, however, Brief for Appellees 40-42, affirmance of the District Court's holding does not preclude the city from altering this anomaly. 73 It seems significant to me that the District Court adopted the remedial device of conditioning its approval of the annexations on Rome's abandonment of the residency requirement for City Commission elections. It thus denied the city's motion for approval of the annexations "without prejudice to renewal . . . upon the undertaking of suitable action consistent with the views expressed herein." 472 F.Supp. 221, 249 (D.C.1979). This remedial device, conditioning the approval of annexations on the elimination of pre-existing discriminatory aspects of a city's electoral system, was developed in City of Petersburg v. United States, 354 F.Supp. 1021 (D.C.1972), summarily aff'd, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973), and expressly approved by this Court in City of Richmond v. United States, 422 U.S. 358, 369-371, 95 S.Ct. 2296, 2303-2304, 45 L.Ed.2d 245 (1975). 74 I entertain some doubt about the District Court's apparent conclusion that the residency requirement for Commission elections, standing alone, would render the postannexation electoral system of Rome one that did not "fairly recogniz[e] the minority's political potential," within the meaning of City of Richmond. Id., at 378, 95 S.Ct., at 2307. The discriminatory effect of a residency requirement in an at-large election system results from its necessary separation of one contest into a number of individual contests, thereby frustrating minority efforts to utilize effectively single-shot voting. See ante, at 185, n. 21. And in a city the size of Rome, one might reasonably conclude that a requirement that one Commission member reside in each of nine wards would have such an effect. The District Court failed to analyze, however, the impact of the Attorney General's preclearance of Rome's reduction of the number of wards in the city from nine to three. The potential for effective single-shot voting would not be frustrated by a requirement that three commissioners be elected from each of three wards, so long as candidates were not required to run for a particular "numbered post" within each ward. Given the Attorney General's preclearance of the reduction of the number of wards from nine to three, the latter requirement is one that the District Court should have considered in determining whether the presence of a residency requirement would necessarily lead to the conclusion that Rome's postannexation electoral system is one that does not fairly recognize the minority's political potential. 75 I do not dissent from the affirmance of the District Court's holding with respect to the annexations, however, because the appellees have conceded that Rome need not abandon its residency requirement in order to keep the annexed areas within the jurisdiction of the City Commission. Appellees state: 76 "If the City wished to retain both a residency requirement and at-large elections, . . . it could couple its pre-1966 procedures with its subsequent shift to a system of electing three commissioners from each of three wards. (The Attorney General had not objected to the change from nine wards to three larger wards.) When candidates are running concurrently for three unnumbered positions in each of the three wards, without a majority-vote requirement, there can be no head-to-head contest, and single-shot voting by black voters would give them a chance to elect the candidate they supported." Brief for Appellees 41-42. 77 Thus, on the understanding that the Attorney General would not object to the District Court's approval of the annexations insofar as they expand the jurisdiction of the City Commission, if the city either eliminates the residency requirement and returns to a nine-ward system, or retains the residency requirement and the three-ward system that has been in effect since 1966, I join in Part IV-B of the Court's opinion. 78 Mr. Justice STEVENS, concurring. 79 Although I join the Court's opinion, the dissenting opinions prompt me to emphasize two points that are crucial to my analysis of the case; both concern the statewide nature of the remedy Congress authorized when it enacted the Voting Rights Act of 1965. The critical questions are: (1) whether, as a statutory matter, Congress has prescribed a statewide remedy that denies local political units within a covered State the right to "bail out" separately; and (2) if so, whether, as a constitutional matter, such statewide relief exceeds the enforcement powers of Congress. If, as I believe, Congress could properly impose a statewide remedy and in fact did so in the Voting Rights Act, then the fact that the city of Rome has been innocent of any wrongdoing for the last 17 years is irrelevant; indeed, we may assume that there has never been any racial discrimination practiced in the city of Rome. If racially discriminatory voting practices elsewhere in the State of Georgia were sufficiently pervasive to justify the statewide remedy Congress prescribed, that remedy may be applied to each and every political unit within the State, including the city of Rome. 80 * Section 5 of the Voting Rights Act imposes certain restrictions on covered States and their political subdivisions, as well as on political subdivisions in noncovered States that have been separately designated as covered by the Attorney General pursuant to § 4(b) of the Act. Section 4(a) of the Act permits both States and separately designated political subdivisions in noncovered States to bail out of § 5's restrictions by demonstrating that they have not engaged in racially discriminatory voting practices for a period of 17 years. In United States v. Board of Commissioners of Sheffield, Ala., 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148, the Court construed the word "State" as used in §§ 4(a) and 5 to include all political units within a State even though they did not satisfy the statutory definition of a "political subdivision,"1 and even though that definition had been added to the statute for the express purpose of limiting coverage.2 81 My opinion that the Sheffield Court's construction of the Act was erroneous does not qualify the legal consequences of that holding. See Dougherty County Board of Education v. White, 439 U.S. 32, 47, 99 S.Ct. 368, 377, 58 L.Ed.2d 269 (STEVENS, J., concurring).3 Nor does it prevent me from joining the Court's holding today that a political unit within a covered State is not entitled to bail out under § 4(a).4 For both the plain language of the statute and its legislative history unambiguously indicate that only covered States and separately designated political subdivisions in noncovered States are entitled to take advantage of that provision. See § 4(a) and H.R.Rep.No.439, 89th Cong., 1st Sess., 14 (1965), quoted ante at 169. The political subdivisions of a covered State, while subject to § 5's preclearance requirements, are not entitled to bail out in a piecemeal fashion; rather, they can only be relieved of their preclearance obligations if the entire State meets the conditions for a bailout. 82 Given the Court's decision in Sheffield that all political units in a covered State are to be treated for § 5 purposes as though they were "political subdivisions" of that State, it follows that they should also be treated as such for purposes of § 4(a)'s bailout provisions. Moreover, even without the Sheffield decision, it would be illogical to deny separate bailout relief to larger political units such as counties—which are clearly "political subdivisions" as that term is defined in § 14(c)(2)—and to grant it to smaller units such as municipalities and school boards. II 83 The second question is whether Congress has the power to prescribe a statewide remedy for discriminatory voting practices if it does not allow political units that can prove themselves innocent of discrimination to bail out of the statute's coverage. In Part III-B of its opinion, the Court explains why Congress, under the authority of § 2 of the Fifteenth Amendment, may prohibit voting practices that have a discriminatory effect in instances in which there is ample proof of a longstanding tradition of purposeful discrimination. I think it is equally clear that remedies for discriminatory practices that were widespread within a State may be applied to every governmental unit within the State even though some of those local units may have never engaged in purposeful discrimination themselves.5 In short, Congress has the constitutional power to regulate voting practices in Rome, so long as it has the power to regulate such practices in the entire State of Georgia. Since there is no claim that the entire State is entitled to relief from the federal restrictions, Rome's separate claim must fail. 84 I therefore join the Court's opinion. 85 Mr. Justice POWELL, dissenting. 86 Two years ago this Court held that the term "State" in § 4(a) of the Voting Rights Act includes all political subdivisions that control election processes, and that those subdivisions are subject to the requirement in § 5 of the Act that federal authorities preclear changes in voting procedures. United States v. Board of Commissioners of Sheffield, Ala., 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978) (Sheffield ). Today the Court concludes that those subdivisions are not within the term "State" when it comes to an action to "bail out" from the preclearance requirement. Because this decision not only conflicts with Sheffield but also raises grave questions as to the constitutionality of the Act, I dissent. 87 * Although I dissent on statutory and constitutional grounds, the need to examine closely the Court's treatment of the Voting Rights Act is sharply illustrated by the facts of this case. In Rome, a city of about 30,000, approximately 15% of the registered voters are black. This case involves two types of local action affecting voting. First, in 1966 the Georgia Assembly established a majority vote requirement for the City Commission and the Board of Education, and reduced the number of election wards from nine to three. Under the new arrangement, three city commissioners and two members of the Board of Education are chosen from each ward for numbered posts.1 Second, between 1964 and 1975 Rome completed 60 territorial annexations, 13 of which are at issue in this case. The annexations allegedly diluted the black vote in Rome by disproportionately adding white voters. But 9 of the 13 relevant tracts of land were completely unpopulated when they were taken over by the city. By 1978 the additional white voters in the annexed land had caused a net decline of 1% in the black share of Rome's electorate.2 88 There is substantial conflict between the ultimate ruling of the three-judge District Court in this case and its findings of fact. That court made a finding that Rome has not employed a "literacy test or other device . . . as a prerequisite to voter registration during the past seventeen years," and that "in recent years there have been no other direct barriers to black voting in Rome." 472 F.Supp. 221, 224, 225 (D.C.1979). The court observed that white officials have encouraged blacks to run for office, that there was no evidence of obstacles to political candidacy by blacks, and that a recent black contender for the Board of Education narrowly lost a runoff with 45% of the vote (in a city where blacks make up only 15% of the voters). Although no black has been elected to the municipal government, the court stated that the "white elected officials of Rome . . . are responsive to the needs and interests of the black community," and actively seek black political support.3 Id., at 225. Indeed, the District Court concluded that in Rome "the black community, if it chooses to vote as a group, can probably determine the outcome of many if not most contests." Ibid. 89 Despite these findings, the District Court refused to approve the annexations or the changes in voting procedures. The court held that the city had not proved that the annexations and voting changes did not reduce the political influence of Rome's blacks. Id., at 245, 247. I have many reservations about that conclusion. I note in particular that a black candidate running under the challenged election rules commanded three times the share of votes that the black community holds. Moreover, nine of the annexations at issue were of vacant land and thus had no effect at all on voting when they occurred. Nevertheless, I need not consider whether the District Court's ruling on the evidence is clearly erroneous. Rather, I cite the apparent factual inconsistencies of the holding below because they highlight how far the courts, including this Court, have departed from the original understanding of the Act's purpose and meaning.4 Against this background, I address the substantive questions posed by this case. II 90 Under § 4(a) of the Voting Rights Act a State or political subdivision can attempt to end its preclearance obligations through a declaratory judgment action (or "bailout") in the District Court for the District of Columbia. 42 U.S.C. § 1973b(a). Bailout must be granted if the District Court finds that in that jurisdiction no "test or device has been used during the seventeen years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color." Ibid. The District Court expressly found that the city of Rome meets this standard and that blacks participate actively in Rome's political life. See supra, at 1571-1572. These findings demonstrate that the city has satisfied both the letter and the spirit of the bailout provision. Nevertheless, the District Court held that as long as Georgia is covered by § 5 of the Act, the city of Rome may not alter any voting practice without the prior approval of federal authorities.5 91 The Court today affirms the decision of the District Court, and holds that no subdivision may bail out so long as its State remains subject to preclearance. This conclusion can be reached only by disregarding the terms of the statute as we have interpreted them before. Section 4(a) makes bailout available to "such State or subdivision," language that refers back to the provision's ban on the use of literacy tests (i) "in any State" reached by § 4(b) of the Act, or (ii) "in any political subdivision" which is covered "as a separate unit."6 Because the entire State of Georgia is covered under § 4(b), this case concerns the first category in that definition.7 Thus the crucial language here, as in Sheffield, is § 4(a)'s prohibition of tests or devices "in any State" covered under § 4(b). The Sheffield Court emphasized the territorial content of this key phrase. The Court reasoned that by referring to discriminatory practices "in" a State, Congress extended the ban on tests and devices to all political subdivisions with any control over voting. 435 U.S., at 120, 98 S.Ct., at 973. Since the same language in § 4(a) also defines the applicability of § 5, the Court continued, subdivisions must also be subject to preclearance. Consequently, federal authorities now must review all changes in local voting rules and regulations in States covered by the Act. 435 U.S., at 126-127, 98 S.Ct., at 976-977. 92 The availability of a bailout action is defined by exactly the same phrase that the Court interpreted in Sheffield. In the bailout context, however, the Court today finds that the language does not reach political subdivisions. The Court thus construes the identical words in § 4(a) to have one meaning in one situation and a wholly different sense when applied in another context. Such a protean construction reduces the statute to irrationality. 93 This irrationality is evident in the contrast between the rights of localities like Rome that are in States covered by § 4(b), and those of covered local governments that are located in States not covered by the Act. Twenty-eight subdivisions in the latter group have bailed out from the preclearance obligation in six separate actions.8 Yet the only difference between those governments and the city of Rome is that the State in which Rome is located is itself subject to the Voting Rights Act. There is no reasoned justification for allowing a subdivision in North Carolina to bail out but denying a similar privilege to a subdivision in Georgia when both have been found to be in full compliance with the bailout criteria. 94 The District Court acknowledged, and the Court today does not deny, the "abstract force" of this argument. The argument nevertheless fails, according to the Court's opinion, for two reasons: (i) Sheffield "did not hold that cities such as Rome are 'political subdivisions' " or "States," but merely subjected such entities to the preclearance requirement of § 5; and (ii) congressional Reports accompanying the Voting Rights Act of 1965 state that bailout should not be available to a subdivision located in a State covered by the Act. Ante, at 168-169. Neither reason supports the Court's decision. That Sheffield did not identify cities like Rome as "States" or "political subdivisions" as defined by the Act does not answer the point that the construction of "State" in Sheffield should control the availability of bailout. Both in terms of logic and of fairness, if Rome must preclear it must also be free to bail out. Second, it is elementary that where the language of a statute is clear and unambiguous, there is no occasion to look at its legislative history. We resort to legislative materials only when the congressional mandate is unclear on its face. Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947, 93 L.Ed. 1207 (1949); United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (1961). Although "committee reports in particular are often a helpful guide to the meaning of ambiguous statutory language, even they must be disregarded if inconsistent with the plain language of the statute." Gooding v. United States, 416 U.S. 430, 468, 94 S.Ct. 1780, 1799, 40 L.Ed.2d 250 (1974) (MARSHALL, J., dissenting). 95 After Sheffield, there can be little dispute over the meaning of "State" as used in § 4(a): It includes all political subdivisions that exercise control over elections.9 Accordingly, there is no basis for the Court's reliance on congressional statements that are inconsistent with the terms of the statute. If § 4(a) imposes the burden of preclearance on Rome, the same section must also relieve that burden when the city can demonstrate its compliance with the Act's quite strict requirements for bailout. III 96 There is, however, more involved here than incorrect construction of the statute. The Court's interpretation of § 4(a) renders the Voting Rights Act unconstitutional as applied to the city of Rome. The preclearance requirement both intrudes on the prerogatives of state and local governments and abridges the voting rights of all citizens in States covered under the Act. Under § 2 of the Fifteenth Amendment, Congress may impose such constitutional deprivations only if it is acting to remedy violations of voting rights. See South Carolina v. Katzenbach, 383 U.S. 301, 327-328, 86 S.Ct. 803, 818, 15 L.Ed.2d 769 (1966); Katzenbach v. Morgan, 384 U.S. 641, 667, 86 S.Ct. 1717, 1736, 16 L.Ed.2d 828 (1966) (Harlan, J., dissenting). In view of the District Court finding that Rome has not denied or abridged the voting rights of blacks, the Fifteenth Amendment provides no authority for continuing those deprivations until the entire State of Georgia satisfies the bailout standards of § 4(a).10 97 When this Court first sustained the Voting Rights Act of 1965, it conceded that the legislation was "an uncommon exercise of congressional power." South Carolina v. Katzenbach, supra, at 334, 86 S.Ct., at 822. The Court recognized that preclearance under the Act implicates serious federalism concerns. 383 U.S., at 324-327, 86 S.Ct., at 816-818. As Mr. Justice STEVENS noted in Sheffield, the statute's "encroachment on state sovereignty is significant and undeniable." 435 U.S., at 141, 98 S.Ct., at 984 (dissenting opinion).11 That encroachment is especially troubling because it destroys local control of the means of self-government, one of the central values of our polity.12 Unless the federal structure provides some protection for a community's ordering of its own democratic procedures, the right of each community to determine its own course within the boundaries marked by the Constitution is at risk. Preclearance also operates at an individual level to diminish the voting rights of residents of covered areas. Federal review of local voting practices reduces the influence that citizens have over policies directly affecting them, and strips locally elected officials of their autonomy to chart policy. 98 The Court in South Carolina v. Katzenbach, supra, did not lightly approve these intrusions on federalism and individual rights. It upheld the imposition of preclearance as a prophylactic measure based on the remedial power of Congress to enforce the Fifteenth Amendment. But the Court emphasized that preclearance, like any remedial device, can be imposed only in response to some harm. When Congress approved the Act, the Court observed, there was "reliable evidence of actual voting discrimination in a great majority of the States and political subdivisions affected by the new remedies of the Act." 383 U.S., at 329, 86 S.Ct., at 819. Since the coverage formula in § 4(b) purported to identify accurately those jurisdictions that had engaged in voting discrimination, the imposition of preclearance was held to be justified "at least in the absence of proof that [the state or local government has] been free of substantial voting discrimination in recent years." 383 U.S., at 330, 86 S.Ct., at 820.13 99 The Court in South Carolina v. Katzenbach emphasized, however, that a government subjected to preclearance could be relieved of federal oversight if voting discrimination in fact did not continue or materialize during the prescribed period. 100 "Acknowledging the possibility of overbreadth, the Act provides for termination of special statutory coverage at the behest of States and political subdivisions in which the danger of substantial voting discrimination has not materialized during the preceding [statutorily defined period]." Id., at 331, 86 S.Ct., at 820. 101 Although this passage uses the term "overbreadth" in an unusual sense, the point is clear. As long as the bailout option is available, there is less cause for concern that the Voting Rights Act may overreach congressional powers by imposing preclearance on a nondiscriminating government. Without bailout, the problem of constitutional authority for preclearance becomes acute. 102 The Court today decrees that the citizens of Rome will not have direct control over their city's voting practices until the entire State of Georgia can free itself from the Act's restrictions. Under the current interpretation of the word "State" in § 4(a), Georgia will have to establish not only that it has satisfied the standards in § 4(a), but also that each and every one of its political subdivisions meets those criteria. This outcome makes every city and county in Georgia a hostage to the errors, or even the deliberate intransigence, of a single subdivision.14 Since the statute was enacted, only one State has succeeded in bailing out—Alaska in 1966, and again in 1971.15 That precedent holds out little or no hope for more populous States such as Georgia. Demonstrating a right to bailout in 1966 for Alaska's 272,000 people and 56 political subdivisions, or in 1971 for that State's 302,000 people and 60 subdivisions, is a far cry from seeking bailout now on behalf of Georgia's approximately 5 million people and 877 local governments.16 Today's ruling therefore will seal off the constitutionally necessary safety valve in the Voting Rights Act. 103 The preclearance requirement enforces a presumption against voting changes by certain state and local governments. If that presumption is restricted to those governments meeting § 4(b)'s coverage criteria, and if the presumption can be rebutted by a proper showing in a bailout suit, the Act may be seen, as the South Carolina v. Katzenbach Court saw it, as action by Congress at the limit of its authority under the Fifteenth Amendment. But if governments like the city of Rome may not bail out, the statute oversteps those limits. For these reasons, I would reverse the judgment of the District Court.17 IV 104 If there were reason to believe that today's decision would protect the voting rights of minorities in any way, perhaps this case could be viewed as one where the Court's ends justify dubious analytical means. But the District Court found, and no one denies, that for at least 17 years there has been no voting discrimination by the city of Rome. Despite this record, the Court today continues federal rule over the most local decisions made by this small city in Georgia. Such an outcome must vitiate the incentive for any local government in a State covered by the Act to meet diligently the Act's requirements. Neither the Framers of the Fifteenth Amendment nor the Congress that enacted the Voting Rights Act could have intended that result. 105 Mr. Justice REHNQUIST, with whom Mr. Justice STEWART joins, dissenting. 106 We have only today held that the city of Mobile does not violate the Constitution by maintaining an at-large system of electing city officials unless voters can prove that system is a product of purposeful discrimination. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). This result is reached even though the black residents of Mobile have demonstrated that racial "bloc" voting has prevented them from electing a black representative to the city government. The Court correctly concluded that a city has no obligation under the Constitution to structure its representative system in a manner that maximizes the black community's ability to elect a black representative. Yet in the instant case, the city of Rome is prevented from instituting precisely the type of structural changes which the Court says Mobile may maintain consistently with the Civil War Amendments, so long as their purpose be legitimate, because Congress has prohibited these changes under the Voting Rights Act as an exercise of its "enforcement" power conferred by those Amendments. 107 It is not necessary to hold that Congress is limited to merely providing a forum in which aggrieved plaintiffs may assert rights under the Civil War Amendments in order to disagree with the Court's decision permitting Congress to straitjacket the city of Rome in this manner. Under § 5 of the Fourteenth Amendment and § 2 of the Fifteenth Amendment, Congress is granted only the power to "enforce" by "appropriate" legislation the limitations on state action embodied in those Amendments. While the presumption of constitutionality is due to any act of a coordinate branch of the Federal Government or of one of the States, it is this Court which is ultimately responsible for deciding challenges to the exercise of power by those entities. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Today's decision is nothing less than a total abdication of that authority, rather than an exercise of the deference due to a coordinate branch of the government. 108 * The facts of this case readily demonstrate the fallacy underlying the Court's determination that congressional prohibition of Rome's conduct can be characterized as enforcement of the Fourteenth or Fifteenth Amendment.1 The three-judge District Court entered extensive findings of fact facts which are conspicuously absent from the Court's opinion. The lower court found that Rome has not employed any discriminatory barriers to black voter registration in the past 17 years. Nor has the city employed any other barriers to black voting or black candidacy. Indeed, the court found that white elected officials have encouraged blacks to run for elective posts in Rome, and are "responsive to the needs and interests of the black community." The city has not discriminated against blacks in the provision of services and has made efforts to upgrade black neighborhoods. 109 It was also established that although a black has never been elected to political office in Rome, a black was appointed to fill a vacancy in an elective post. White candidates vigorously pursue the support of black voters. Several commissioners testified that they spent proportionately more time campaigning in the black community because they "needed that vote to win." The court concluded that "blacks often hold the balance of power in Rome elections." 110 Despite this political climate, the Attorney General refused to approve a number of city annexations and various changes in the electoral process. The city sought to require majority vote for election to the City Commission and Board of Education; to create numbered posts and staggered terms for those elections; and to establish a ward residency requirement for Board of Education elections. In addition, during the years between 1964 and 1973, the city effected 60 annexations. Appellees concede that none of the annexations were sought for discriminating purposes. All of the electoral changes and 13 of the annexations were opposed by the Attorney General on the grounds that their adoption would lessen the likelihood that blacks would be successful in electing a black city official, assuming racial bloc voting on the part of both whites and blacks. Each of the changes was considered to be an impermissible "vote-dilution" device. 111 Rome sought judicial relief and the District Court found that the city had met its burden of proving that these electoral changes and annexations were not enacted with the purpose of discriminating against blacks. The changes were nevertheless prohibited because of their perceived disparate effect.2 II 112 The Court holds today that the city of Rome can constitutionally be compelled to seek congressional approval for most of its governmental changes even though it has not engaged in any discrimination against blacks for at least 17 years. Moreover, the Court also holds that federal approval can be constitutionally denied even after the city has proved that the changes are not purposefully discriminatory. While I agree with Mr. Justice POWELL's conclusion that requiring localities to submit to preclearance is a significant intrusion on local autonomy, it is an even greater intrusion on that autonomy to deny preclearance sought. 113 The facts of this case signal the necessity for this Court to carefully scrutinize the alleged source of congressional power to intrude so deeply in the governmental structure of the municipal corporations created by some of the 50 States. Section 2 of the Fifteenth Amendment and § 5 of the Fourteenth provide that Congress shall have the power to "enforce" § 1 "by appropriate legislation." Congressional power to prohibit the electoral changes proposed by Rome is dependent upon the scope and nature of that power. There are three theorires of congressional enforcement power relevant to this case. First, it is clear that if the proposed changes would violate the Constitution, Congress could certainly prohibit their implementation. It has never been seriously maintained, however, that Congress can do no more than the judiciary to enforce the Amendments' commands. Thus, if the electoral changes in issue do not violate the Constitution, as judicially interpreted, it must be determined whether Congress could nevertheless appropriately prohibit these changes under the other two theories of congressional power. Under the second theory, Congress can act remedially to enforce the judicially established substantive prohibitions of the Amendments. If not properly remedial, the exercise of this power could be sustained only if this Court accepts the premise of the third theory that Congress has the authority under its enforcement powers to determine, without more, that electoral changes with a disparate impact on race violate the Constitution, in which case Congress by a legislative Act could effectively amend the Constitution. 114 I think it is apparent that neither of the first two theories for sustaining the exercise of congressional power supports this application of the Voting Rights Act. After our decision in City of Mobile there is little doubt that Rome has not engaged in constitutionally prohibited conduct.3 I also do not believe that prohibition of these changes can genuinely be characterized as a remedial exercise of congressional enforcement powers. Thus, the result of the Court's holding is that Congress effectively has the power to determine for itself that this conduct violates the Constitution. This result violates previously well-established distinctions between the Judicial Branch and the Legislative or Executive Branches of the Federal Government. See United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Marbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803). 115 If the enforcement power is construed as a "remedial" grant of authority, it is this Court's duty to ensure that a challenged congressional Act does no more than "enforce" the limitations on state power established in the Fourteenth and Fifteenth Amendments. Marbury v. Madison. The Court has not resolved the question of whether it is an appropriate exercise of remedial power for Congress to prohibit local governments from instituting structural changes in their government, which although not racially motivated, will have the effect of decreasing the ability of a black voting bloc to elect a black candidate. 116 This Court has found, as a matter of statutory interpretation, that Congress intended to prohibit governmental changes on the basis of no more than disparate impact under the Voting Rights Act. These cases, however, have never directly presented the constitutional questions implicated by the lower court finding in this case that the city has engaged in no purposeful discrimination in enacting these changes, or otherwise, for almost two decades. See Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976); City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975); Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971); Fairley v. Patterson, decided together with Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). In none of these cases was the Court squarely presented with a constitutional challenge to congressional power to prohibit state electoral practices after the locality has disproved the existence of any purposeful discrimination.4 117 The cases in which this Court has actually examined the constitutional questions relating to Congress' exercise of its powers to enforce the Fourteenth and Fifteenth Amendments also did not purport to resolve this issue.5 But the principles which can be distilled from those precedents require the conclusion that the limitations on state power at issue cannot be sustained as a remedial exercise of power. While the Fourteenth and Fifteenth Amendments prohibit only purposeful discrimination, the decisions of this Court have recognized that in some circumstances, congressional prohibition of state or local action which is not purposefully discriminatory may nevertheless be appropriate remedial legislation under the Civil War Amendments. See Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970); Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969). 118 Those circumstances, however, are not without judicial limits. These decisions indicate that congressional prohibition of some conduct which may not itself violate the Constitution is "appropriate" legislation "to enforce" the Civil War Amendments if that prohibition is necessary to remedy prior constitutional violations by the governmental unit, or if necessary to effectively prevent purposeful discrimination by a governmental unit. In both circumstances, Congress would still be legislating in response to the incidence of state action violative of the Civil War Amendments. These precedents are carefully formulated around a historic tenet of the law that in order to invoke a remedy, there must be a wrong—and under a remedial construction of congressional power to enforce the Fourteenth and Fifteenth Amendments, that wrong must amount to a constitutional violation. Only when the wrong is identified can the appropriateness of the remedy be measured. 119 The Court today identifies the constitutional wrong which was the object of this congressional exercise of power as purposeful discrimination by local governments in structuring their political processes in an effort to reduce black voting strength. The Court goes on to hold that the prohibitions imposed in this case represent an "appropriate" means of preventing such constitutional violations. The Court does not rest this conclusion on any finding that this prohibition is necessary to remedy any prior discrimination by the locality. Rather, the Court reasons that prohibition of changes discriminatory in effect prevent the incidence of changes which are discriminatory in purpose: 120 "Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact." Ante, at 177. 121 What the Court explicitly ignores is that in this case the city has proved that these changes are not discriminatory in purpose. Neither reason nor precedent supports the conclusion that here it is "appropriate" for Congress to attempt to prevent purposeful discrimination by prohibiting conduct which a locality proves is not purposeful discrimination. 122 Congress had before it evidence that various governments were enacting electoral changes and annexing territory to prevent the participation of blacks in local government by measures other than outright denial of the franchise.6 Congress could of course remedy and prevent such purposeful discrimination on the part of local governments. See Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 130, 5 L.Ed.2d 110 (1960). And given the difficulties of proving that an electoral change or annexation has been undertaken for the purpose of discriminating against blacks, Congress could properly conclude that as a remedial matter it was necessary to place the burden of proving lack of discriminatory purpose on the localities. See South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). But all of this does not support the conclusion that Congress is acting remedially when it continues the presumption of purposeful discrimination even after the locality has disproved that presumption. Absent other circumstances, it would be a topsy-turvy judicial system which held that electoral changes which have been affirmatively proved to be permissible under the Constitution nonetheless violate the Constitution. 123 The precedent on which the Court relies simply does not support its remedial characterization. Neither Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), nor South Carolina v. Katzenbach, supra, legitimizes the use of an irrebuttable presumption that "vote-diluting" changes are motivated by a discriminatory animus. The principal electoral practice in issue in those cases was the use of literacy tests. Yet, the Court simply fails to make any inquiry as to whether the particular electoral practices in issue here are encompassed by the "preventive" remedial rationale invoked in South Carolina and Oregon. The rationale does support congressional prohibition of some electoral practices, but simply has no logical application to the "vote-dilution" devices in issue. 124 In Oregon, the Court sustained a nationwide prohibition of literacy tests, thereby extending the more limited suspension approved in South Carolina. By upholding this congressional measure, the Court established that under some circumstances, a congressional remedy may be constitutionally overinclusive by prohibiting some state action which might not be purposefully discriminatory. That possibility does not justify the overinclusiveness countenanced by the Court in this case, however. Oregon by no means held that Congress could simply use discriminatory effect as a proxy for discriminatory purpose, as the Court seems to imply. Instead, the Court opinions identified the factors which rendered this prohibition properly remedial. The Court found the nationwide ban to be an appropriate means of effectively preventing purposeful discrimination in the application of the literacy tests as well as an appropriate means of remedying prior constitutional violations by state and local governments in the administration of education to minorities. 125 The presumption that the literacy tests were either being used to purposefully discriminate, or that the disparate effects of those tests were attributable to discrimination in stateadministered education was not very wide of the mark. Various opinions of the Court noted that at the time that Congress enacted the ban, few States were utilizing literacy tests, 400 U.S., at 147, 91 S.Ct., at 276 (opinion of Douglas, J.), and the voter registration statistics available within those States suggested that a disparate effect was prevalent. Id., at 132-133, 91 S.Ct., at 269 (opinion of Black, J.). Even if not adopted with a discriminatory purpose, the tests could readily be applied in a discriminatory fashion. Thus a demonstration by the State that it sought to reinstate the tests for legitimate purposes did not eliminate the substantial risk of discrimination in application. Only a ban could effectively prevent the occurrence of purposeful discrimination. 126 The nationwide ban was also found necessary to effectively remedy past constitutional violations. Without the nationwide ban, a voter who was illiterate due to state discrimination in education could be denied the right to vote on the basis of his illiteracy when he moved into a jurisdiction retaining a literacy test for nondiscriminatory purposes. Id., at 283-284, 91 S.Ct., at 344. Finally, Mr. Justice STEWART found that a uniform prohibition had definite advantages for enforcement and federal relations: it reduced tensions with particular regions, and it relieved the Federal Government from the administrative burden implicated by selective state enforcement. 127 Presumptive prohibition of vote-diluting procedures is not similarly an "appropriate" means of exacting state compliance with the Civil War Amendments. First, these prohibitions are quite unlike the literacy ban, where the disparate effects were traceable to the discrimination of governmental bodies in education even if their present desire to use the tests was legitimate. See Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969). Any disparate impact associated with the nondiscriminatory electoral changes in issue here results from bloc voting—private rather than governmental discrimination. It is clear therefore that these prohibitions do not implicate congressional power to devise an effective remedy for prior constitutional violations by local governments. Nor does the Court invoke this aspect of congressional remedial powers. 128 It is also clear that while most States still utilizing literacy tests may have been doing so to discriminate, a similar generalization could not be made about all government structures which have some disparate impact on black voting strength. At the time Congress passed the Act, one study demonstrated that 60% of all cities nationwide had at-large elections for city officials, for example. This form of government was adopted by many cities throughout this century as a reform measure designed to overcome wide-scale corruption in the ward system of government. See Jewell, Local Systems of Representation: Political Consequences and Judicial Choices, 36 Geo.Wash.L.Rev. 790, 799 (1967). Obviously, annexations similarly cannot be presumed to be devoid of legitimate uses. Yet both of these practices are regularly prohibited by the Act in most covered cities. 129 Nor does the prohibition of all practices with a disparate impact enhance congressional prevention of purposeful discrimination. The changes in issue are not, like literacy tests, though fair on their face, subject to discriminatory application by local authorities. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). They are either discriminatory from the outset or not. 130 Finally, the advantages supporting the imposition of a nationwide ban are simply not implicated in this case. No added administrative burdens are in issue since Congress has provided the mechanism for preclearance suits in any event, and the burden of proof for this issue is on the locality. And it is certain that the only constitutional wrong implicated—purposeful dilution can be effectively remedied by prohibiting it where it occurs. For all these reasons, I do not think that the present case is controlled by the result in Oregon. By prohibiting all electoral changes with a disparate impact, Congress has attempted to prevent disparate impacts—not purposeful discrimination. 131 Congress unquestionably has the power to prohibit and remedy state action which intentionally deprives citizens of Fourteenth and Fifteenth Amendment rights. But unless these powers are to be wholly uncanalized, it cannot be appropriate remedial legislation for Congress to prohibit Rome from structuring its government in the manner as its population sees fit absent a finding or unrebutted presumption that Rome has been, or is, intentionally discriminating against its black citizens. Rome has simply committed no constitutional violations, as this Court has defined them. 132 More is at stake than sophistry at its worst in the Court's conclusion that requiring the local government to structure its political system in a manner that most effectively enhances black political strength serves to remedy or prevent constitutional wrongs on the part of the local government. The need to prevent this disparate impact is premised on the assumption that white candidates will not represent black interests, and that States should devise a system encouraging blacks to vote in a bloc for black candidates. The findings in this case alone demonstrate the tenuous nature of these assumptions. The court below expressly found that white officials have ably represented the interests of the black community. Even blacks who testified admitted no dissatisfaction, but expressed only a preference to be represented by officials of their own race. The enforcement provisions of the Civil War Amendments were not premised on the notion that Congress could empower a later generation of blacks to "get even" for wrongs inflicted on their forebears. What is now at stake in the city of Rome is the preference of the black community to be represented by a black. This Court has never elevated such a notion, by no means confined to blacks, to the status of a constitutional right. SeeWhitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). This Court concluded in Whitcomb that 133 "[t]he mere fact that one interest group or another concerned with the outcome of . . . elections has found itself outvoted and without legislative seats of its own provides no basis for invoking constitutional remedies where, as here, there is no indication that this segment of the population is being denied access to the political system." Id., at 154-155, 91 S.Ct., at 1875. 134 The Constitution imposes no obligation on local governments to erect institutional safeguards to ensure the election of a black candidate. Nor do I believe that Congress can do so, absent a finding that this obligation would be necessary to remedy constitutional violations on the part of the local government. 135 It is appropriate to add that even if this Court could find a remedial relationship between the prohibition of all state action with a disparate impact on black voting strength and the incidence of purposeful discrimination, this Court should exercise caution in approving the remedy in issue here absent purposeful dilution. Political theorists can readily differ on the advantages inherent in different governmental structures. As Justice Harlan noted in his dissent in Fairley v. Patterson, decided together with Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969): "[I]t is not clear to me how a court would go about deciding whether an at-large system is to be preferred over a district system. Under one system, Negroes have some influence in the election of all officers; under the other, minority groups have more influence in the selection of fewer officers." Id., at 586, 89 S.Ct., at 842 (emphasis deleted). B 136 The result reached by the Court today can be sustained only upon the theory that Congress was empowered to determine that structural changes with a disparate impact on a minority group's ability to elect a candidate of their race violates the Fourteenth or Fifteenth Amendment. This construction of the Fourteenth Amendment was rejected in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). The Court emphasized that the power conferred was "remedial" only. The Court reasoned that the structure of the Amendment made it clear that it did not "authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers . . ., when these are subversive of the fundamental rights specified in the [A]mendment." Id., at 11, 3 S.Ct., at 21. This interpretation is consonant with the legislative history surrounding the enactment of the Amendment.7 137 This construction has never been refuted by a majority of the Members of this Court. Support for this construction in current years has emerged in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), and Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970).8 See also opinion of POWELL, J., ante, at 200-201. In South Carolina v. Katzenbach, the Court observed that Congress could not attack evils not comprehended by the Fifteenth Amendment. 383 U.S., at 326, 86 S.Ct., at 817. In Oregon v. Mitchell, five Members of the Court were unwilling to conclude that Congress had the power to determine that establishing the age limitation for voting at 21 denied equal protection to those between the ages of 18 and 20. 138 The opinion of Mr. Justice STEWART in that case, joined by Mr. Chief Justice BURGER and Mr. Justice BLACKMUN, reaffirmed that Congress only has the power under the Fourteenth Amendment to "provide the means of eradicating situations that amount to a violation of the Equal Protection Clause" but not to "determine as a matter of substantive constitutional law what situations fall within the ambit of the clause." Id., at 296, 91 S.Ct., at 350. Mr. Justice Harlan, in a separate opinion, reiterated his belief that it is the duty of the Court, and not the Congress, to determine when States have exceeded constitutional limitations imposed upon their powers. Id., at 204-207, 91 S.Ct., at 305-306. Cf. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5 (1958). Mr. Justice Black also was unwilling to accept the broad construction of enforcement powers formulated in the opinion of Mr. Justice BRENNAN, joined by Justices WHITE and MARSHALL.9 139 The Court today fails to heed this prior precedent. To permit congressional power to prohibit the conduct challenged in this case requires state and local governments to cede far more of their powers to the Federal Government than the Civil War Amendments ever envisioned; and it requires the judiciary to cede far more of its power to interpret and enforce the Constitution than ever envisioned. The intrusion is all the more offensive to our constitutional system when it is recognized that the only values fostered are debatable assumptions about political theory which should properly be left to the local democratic process. 1 In its entirety, § 5, as set forth in 42 U.S.C. § 1973c, provides: "Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objec- tion will be made, nor the Attorney General's failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to re-examine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 and any appeal shall lie to the Supreme Court." 2 In its entirety, § 4(a), as set forth in 42 U.S.C. § 1973b(a), provides: "To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the first two sentences of subsection (b) of this section or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the seventeen years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color: Provided, That no such declaratory judgment shall issue with respect to any plaintiff for a period of seventeen years after the entry of a final judgment of any court of the United States, other than the denial of a declaratory judgment under this section, whether entered prior to or after August 6, 1965, determining that denials or abridgments of the right to vote on account of race or color, through the use of such tests or devices have occurred anywhere in the territory of such plaintiff. No citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the third sentence of subsection (b) of this section or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in subsection (f)(2) of this section: Provided, That no such declaratory judgment shall issue with respect to any plaintiff for a period of ten years after the entry of a final judgment of any court of the United States, other than the denial of a declaratory judgment under this section, whether entered prior to or after the enactment of this paragraph, determining that denial or abridgments of the right to vote on account of race or color, or in contravention of the guarantees set forth in subsection (f)(2) of this section through the use of tests or devices have occurred anywhere in the territory of such plaintiff. "An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of subsection 2284 of title 28 and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in subsection (f)(2) of this section. "If the Attorney General determines that he has no reason to believe that any such test or device has been used during the seventeen years preceding the filing of an action under the first sentence of this subsection for the purpose or with the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in subsection (f)(2) of this section, he shall consent to the entry of such judgment. "If the Attorney General determines that he has no reason to believe that any such test or device has been used during the ten years preceding the filing of an action under the second sentence of this subsection for the purpose or with the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in subsection (f)(2) of this section, he shall consent to the entry of such judgment." 3 In its entirety, § 4(b), as set forth in 42 U.S.C. § 1973b(b), provides: "The provisions of subsection (a) of this section shall apply in any State or in any political subdivision of a State which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964. On and after August 6, 1970, in addition to any State or political subdivision of a State determined to be subject to subsection (a) of this section pursuant to the previous sentence, the provisions of subsection (a) of this section shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1968, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential election of November 1968. On and after August 6, 1975, in addition to any State or political subdivision of a State determined to be subject to subsection (a) of this section pursuant to the previous two sentences, the provisions of subsection (a) of this section shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1972, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the citizens of voting age were registered on November 1, 1972, or that less than 50 per centum of such persons voted in the Presidential election of November 1972. "A determination or certification of the Attorney General or of the Director of the Census under this section or under section 1973d or 1973k of this title shall not be reviewable in any court and shall be effective upon publication in the Federal Register." 4 Section 4(c) of the Act, as set forth in 42 U.S.C. § 1973b(c), provides: "The phrase 'test or device' shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." 5 Section 14(c)(2) of the Act, as set forth in 42 U.S.C. § 1973l (c)(2), provides: "The term 'political subdivision' shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." 6 We also reject the appellants' argument that the majority vote, runoff election, and numbered posts provisions of the city's charter have already been precleared by the Attorney General because in 1968 the State of Georgia submitted, and the Attorney General precleared, a comprehensive Municipal Election Code that is now Title 34A of the Code of Georgia. Both the relevant regulation, 28 CFR § 51.10 (1979), and the decisions of this Court require that the jurisdiction "in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act," Allen v. State Board of Elections, 393 U.S. 544, 571, 89 S.Ct. 817, 834-835, 22 L.Ed.2d 1 (1969), and that the Attorney General be afforded an adequate opportunity to determine the purpose of the electoral changes and whether they will adversely affect minority voting in that jurisdiction, see United States v. Board of Commissioners of Sheffield, Ala., 435 U.S. 110, 137-138, 98 S.Ct. 965, 982-983, 55 L.Ed.2d 148 (1978). Under this standard, the State's 1968 submission cannot be viewed as a submission of the city's 1966 electoral changes, for, as the District Court noted, the State's submission informed the Attorney General only of "its decision to defer to local charters and ordinances regarding majority voting, runoff elections, and numbered posts," and "did not . . . submit in an 'unambiguous and recordable manner' all municipal charter provisions, as written in 1968 or as amended thereafter, regarding these issues." 472 F.Supp. 221, 233 (D.C.1979). 7 See n. 1, supra. 8 This regulation provides: "When the Attorney General objects to a submitted change affecting voting, and the submitting authority seeking reconsideration of the objection brings additional information to the attention of the Attorney General, the Attorney General shall decide within 60 days of receipt of a request for reconsideration (provided that he shall have at least 15 days following a conference held at the submitting authority's request) whether to withdraw or to continue his objection." 9 Because of our resolution of this issue, we need not address the Government's contention that the 60-day period provided by 28 CFR § 51.3(d) is permissive rather than mandatory. 10 The Amendment provides: "Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. "Section 2. The Congress shall have power to enforce this article by appropriate legislation." 11 For purposes of this case it is unnecessary to examine the various approaches expressed by the Members of the Court in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47, decided this day. 12 Section 5 of the Fourteenth Amendment provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." 13 There was no opinion for the Court in this case. Mr. Justice Douglas expressed the view that the legislation in question was authorized under § 5 of the Fourteenth Amendment. 400 U.S., at 144-147, 91 S.Ct., at 274-276. The other eight Members of the Court believed that the Congress had permissibly acted within the authority provided it by § 2 of the Fifteenth Amendment. 400 U.S., at 132-133, 91 S.Ct., at 268-269 (opinion of Black, J.); id., at 216, 91 S.Ct., at 311 (opinion of Harlan, J.); id., at 232-234, 91 S.Ct., at 318-319 (opinion of BRENNAN, WHITE, and MARSHALL, JJ.); id., at 283, 91 S.Ct., at 344 (opinion of STEWART, J., joined by BURGER, C. J., and BLACKMUN, J.). 14 See South Carolina v. Katzenbach, 383 U.S. 301, 335, and n. 47, 86 S.Ct. 803, 822, and n. 47, 15 L.Ed.2d 769 (1966) (citing H.R.Rep.No.439, 89th Cong., 1st Sess., 10-11 (1965); S.Rep.No.162, 89th Cong., 1st Sess., pt. 3, pp. 8, 12 (1965)). 15 Indeed, Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), strongly suggested this result by citing South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), as one of several cases sanctioning "intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States. The legislation considered in each case was grounded on the expansion of Congress' powers—with the corresponding diminution of state sovereignty—found to be intended by the Framers and made part of the Constitution upon the States' ratification of those Amendments, a phenomenon aptly described as a 'carv[ing] out' in Ex parte Virginia, [100 U.S. 339, 346 (, 25 L.Ed. 676) (1880)]." Fitzpatrick v. Bitzer, supra, 427 U.S., at 455-456, 96 S.Ct., at 2671. 16 See also Katzenbach v. Morgan, 384 U.S. 641, 646-647, 86 S.Ct. 1717, 1721, 16 L.Ed.2d 828 (1966). 17 We do not reach the merits of the appellants' argument that the Act violates the Guarantee Clause, Art. IV, § 4, since that issue is not justiciable. See, e. g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). 18 Under § 5, the city bears the burden of proving lack of discriminatory purpose and effect. Beer v. United States, 425 U.S. 130, 140-141, 96 S.Ct. 1357, 1363, 47 L.Ed.2d 629 (1976); Georgia v. United States, 411 U.S. 526, 538, 93 S.Ct. 1702, 1709, 36 L.Ed.2d 472 (1973); South Carolina v. Katzenbach, 383 U.S., at 335, 86 S.Ct., at 822. 19 Single-shot voting has been described as follows: "Consider [a] town of 600 whites and 400 blacks with an at-large election to choose four council members. Each voter is able to cast four votes. Suppose there are eight white candidates, with the votes of the whites split among them approximately equally, and one black candidate, with all the blacks voting for him and no one else. The result is that each white candidate receives about 300 votes and the black candidate receives 400 votes. The black has probably won a seat. This technique is called single-shot voting. Single-shot voting enables a minority group to win some at-large seats if it concentrates its vote behind a limited number of candidates and if the vote of the majority is divided among a number of candidates." U. S. Commission on Civil Rights, The Voting Rights Act: Ten Years After, pp. 206-207 (1975). 20 The District Court found that Rome's Negro citizens believed that a Negro will never be elected as long as the city's present electoral system remains in effect. 472 F.Supp., at 226. Only four Negroes have ever sought elective office in Rome, and none of them was elected. The campaign of the Reverend Clyde Hill, who made the strongest showing of the four, indicates both the presence of racial bloc voting in the city and the dilutive effect of the majority vote/runoff election scheme adopted in 1966. The city's elections were operated under that scheme when Rev. Hill ran for the Board of Education in 1970. With strong support from the Negro community, Rev. Hill ran against three white opponents and received 921 votes in the general election, while his opponents received 909, 407, and 143 votes, respectively. Rev. Hill, then, would have been elected under the pre-1966 plurality-win voting scheme. Under the majority-win/runoff election provisions adopted in 1966, however, a runoff election was held, and the white candidate who was the runner-up in the general election defeated Rev. Hill by a vote of 1409-1142. 21 In so holding, the District Court relied on this analysis by the United States Commission on Civil Rights: " 'There are a number of voting rules which have the effect of frustrating single-shot voting . . . . [I]nstead of having one race for four positions, there could be four races, each for only one position. Thus for post no. 1 there might be one black candidate and one white, with the white winning. The situation would be the same for each post, or seat—a black candidate would always face a white in a head-to-head contest and would not be able to win. There would be no opportunity for single-shot voting. A black still might win if there were more than one white candidate for a post, but this possibility would be eliminated if there was also a majority requirement. " '[Second,] each council member might be required to live in a separate district but with voting still at large. This—just like numbered posts—separates one contest into a number of individual contests. " '[Third,] the terms of council members might be staggered. If each member has a 4-year term and one member is elected each year, then the opportunity for single-shot voting will never arise.' " 472 F.Supp., at 244, n. 95 (quoting U. S. Commission on Civil Rights, supra n. 19, at 207-208). 22 In City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975), and City of Petersburg v. United States, 354 F.Supp. 1021 (D.C.1972), summarily aff'd, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973), evidence of the racial composition of the general population was used to assess the impact of annexations on the importance of the Negro vote in the community. This information, when coupled with data on the racial composition of the community's voting-age population, provides more probative evidence in such cases than does voter registration data, which may perpetuate the effects of prior discrimination in the registration of voters, Ely v. Klahr, 403 U.S. 108, 115, n. 7, 91 S.Ct. 1803, 1807, n. 7, 29 L.Ed.2d 352 (1971); Burns v. Richardson, 384 U.S. 73, 92-93, 86 S.Ct. 1286, 1297, 16 L.Ed.2d 376 (1966), or reflect a belief among the Negro population that it cannot elect a candidate of its choice, cf. n. 20, supra. Current voting-age population data are probative because they indicate the electoral potential of the minority community. * The Attorney General, in response to the city's motion for reconsideration of its submissions, agreed to preclear the 13 annexations for purposes of Board of Education elections. That decision was based solely on the fact that there was no residency requirement for Board of Education elections under Rome's pre-1966 electoral rules. See ante, at 160, 162. 1 Section 14(c)(2) of the Act, as set forth in 42 U.S.C. § 1973l (c)(2), provides: "The term 'political subdivision' shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." 2 See 435 U.S., at 142-143, 98 S.Ct., at 984-985 (STEVENS, J., dissenting). 3 In any event, the city of Rome may be subject to § 5 even under the reasoning of my dissent in Sheffield. As noted above, political subdivisions (i. e., counties and other subdivisions that register voters) in covered States are clearly subject to the restrictions of § 5. In this case the city of Rome registered voters from 1964 to 1969, when the responsibility was transferred to Floyd County, see Stipulation No. 5, App. 58. Thus, from 1965 to 1969, the city was clearly covered by the Act. Because it did not preclear the transfer of voting registration to the county, ibid., it at least arguably remains a "political subdivision" for purposes of both §§ 4(a) and 5. 4 It should be noted that there is some tension between the Court's language in Sheffield and its statement today that Sheffield did not "suggest that a municipality in a covered State is itself a 'State' for purposes of the § 4(a) exemption procedure." See ante, at 168. Compare the latter statement with, e. g., 435 U.S., at 128, 98 S.Ct., at 978, where the Court stated that it was "wholly logical to interpret 'State . . . with respect to which' § 4(a) is in effect as referring to all political units within it." See also id., at 129, n. 17, 98 S.Ct., at 978, n. 17: "Our Brother STEVENS' dissent misconceives the basis for the conclusion that § 5's terms are susceptible of an interpretation under which Sheffield [Ala.] is covered. We believe that the term 'State' can bear a meaning that includes all state actors within it and that, given the textual interrelationship between § 5 and § 4(a) and the related purposes of the two provisions, such a reading is a natural one." To the extent that the Court has disavowed the foregoing comments, I, of course, agree. 5 The same principle applies to a court's exercise of its remedial powers. Thus, in an antitrust action, a remedy may be appropriate even though it "curtail[s] the exercise of liberties that the [defendant] might otherwise enjoy." National Society of Professional Engineers v. United States, 435 U.S. 679, 697, 98 S.Ct. 1355, 1368, 55 L.Ed.2d 637. Similarly, in constitutional cases, a court may impose a remedy that requires more of the defendant than the Constitution itself would require in the absence of any history of wrongdoing. See, e. g., Houchins v. KQED, Inc., 438 U.S. 1, 40, 98 S.Ct. 2588, 2610, 57 L.Ed.2d 553 (STEVENS, J., dissenting). The Court has recently applied this principle to school desegregation cases, holding that a systemwide remedy—as opposed to a remedy concentrating on specific instances of discrimination—may be justified by a prior history of pervasive, systemwide discrimination. Columbus Board of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666; Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720. 1 As part of the package of revisions, the Assembly increased the Board of Education from five to six members, eased voter registration requirements, and shifted registration responsibility to the county. 472 F.Supp. 221, 224 (D.C.1979). 2 The statistics on this question are not altogether satisfactory, since the 1978 population of the annexed areas must be compared to 1975 voter registration totals. Given that 16.6% of the city's voters were black in 1975, that percentage drops only to 15.6% after adding the 823 white voters and 9 black voters who lived in the annexed areas in 1978. See Brief for Appellees 38, n. 26. 3 The District Court also noted that the city has "made an effort to upgrade some black neighborhoods," has subsidized the transit system which has a predominantly black ridership, and has hired a number of blacks for skilled and supervisory positions in the municipal government. 472 F.Supp., at 225. 4 The Court's opinion simply ignores the most relevant facts. In so doing, the Court averts its eyes from the central paradox of this case: Even though Rome has met every criterion established by the Voting Rights Act for protecting the political rights of minorities, the Court holds that the city must remain subject to preclearance. 5 Section 5 permits two methods of preclearance. A local government may ask the District Court for the District of Columbia for a ruling that the voting change is acceptable, or it may submit the change to the Attorney General for him to accept or reject within 60 days. 42 U.S.C. § 1973c. The administrative procedure is used almost exclusively, since it takes less time. 6 Section 4(a), as set forth in 42 U.S.C. § 1973b(a), provides in relevant part: "To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under the first two sentences of subsection (b) of this section or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the seventeen years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color . . . ." (Emphasis supplied). 7 Under § 4(b), a State or political subdivision is subject to the Act if the Director of the Census finds that less than 50% of the eligible population voted in the last Presidential election, and the Attorney General determines that a discriminatory "test or device" was maintained in the jurisdiction in 1964. Those determinations, which are unreviewable, trigger the application of the preclearance requirement of § 5. 42 U.S.C. §§ 1973b(b), 1973c. 8 Counties of Choctaw and McCurtain, Okla. v. United States, C. A. No. 76-1250 (DC May 12, 1978) (two counties); New Mexico, Curry, McKinley and Otero Counties v. United States, C. A. No. 76-0067 (DC July 30, 1976) (three counties); Maine v. United States, C. A. No. 75-2125 (DC Sept. 17, 1976) (13 municipalities and 5 "plantations"); Wake County, N. C. v. United States, C. A. No. 1198-66 (DC Jan. 23, 1967) (one county); Elmore County, Idaho v. United States, C. A. No. 320-66 (DC Sept. 22, 1966) (one county); Apache, Navaho and Coconino Counties, Ariz. v. United States, 256 F.Supp. 903 (D.C.1966) (three counties). Three counties in New York City bailed out in 1972, New York v. United States, C. A. No. 2419-71 (DC Apr. 13, 1972), but the bailout order was rescinded two years later after a District Court found that the State had conducted elections in English only, thereby violating the Act. New York v. United States, C. A. No. 2419-71 (DC Jan. 18, 1974) (referring to Torres v. Sachs, C. A. No. 73-3921 (CES) (SDNY Sept. 27, 1973)), summarily aff'd, 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134 (1974). Bailout was denied in one action involving a local subdivision, Gaston County, N. C. v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969), and three were dismissed by stipulation of the parties, Board of Commissioners, El Paso County, Colo. v. United States, C. A. No. 77-0185 (DC Nov. 8, 1977); Yuba County, Cal. v. United States, C. A. No. 75-2170 (DC May 25, 1976); Nash County, N. C. v. United States, C. A. No. 1702-66 (DC Sept. 26, 1969). 9 This construction applies to political subdivisions defined by § 14(c)(2) of the Act, 42 U.S.C. § 1973l (c)(2), as well as to governments like Rome that do not fall within that statutory definition. Thus, under Sheffield's statutory interpretation, all subdivisions in States covered by the Act should be entitled to bailout. The constitutional analysis of Part III, infra, reaches the same conclusion. 10 In view of the narrower focus of my approach to the statutory and constitutional issues raised in this case, I do not reach the broad analysis offered by Mr. Justice REHNQUIST's dissent. 11 Other Justices have expressed the same concern. E. g., South Carolina v. Katzenbach, 383 U.S. 301, 358, 86 S.Ct. 803, 833, 15 L.Ed.2d 769 (1966) (Black, J., concurring and dissenting); Allen v. State Board of Elections, 393 U.S. 544, 586, and n. 4, 89 S.Ct. 817, 842, and n. 4, 22 L.Ed.2d 1 (1969) (Harlan, J., concurring in part and dissenting in part); see also Georgia v. United States, 411 U.S. 526, 545, 93 S.Ct. 1702, 1713, 36 L.Ed.2d 472 (1973) (POWELL, J., dissenting). In National League of Cities v. Usery, 426 U.S. 833, 856, n. 20, 96 S.Ct. 2465, 2476, n. 20, 49 L.Ed.2d 245 (1976), the Court noted that because political subdivisions "derive their authority and power from their respective States," their integrity, like that of the States, is protected by the principles of federalism. 12 The federal system allocates primary control over elections to state and local officials. Oregon v. Mitchell, 400 U.S. 112, 125, 91 S.Ct. 260, 265, 27 L.Ed.2d 272 (1970) (opinion of Black, J.); id., at 201 (opinion of Harlan, J.); Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959). This Court has emphasized the importance in a democratic society of preserving local control of local matters. See Milliken v. Bradley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974) (federal court control of local schools "would deprive the people of control of schools through their elected representatives"); James v. Valtierra, 402 U.S. 137, 143, 91 S.Ct. 1331, 1334, 28 L.Ed.2d 678 (1971) (local referendum on public housing project "ensures that all the people of a community will have a voice in a decision which may lead to large expenditures . . . and to lower tax revenues"). Preservation of local control, naturally enough, involves protecting the integrity of state and local governments. See National League of Cities v. Usery, supra, at 855, 96 S.Ct., at 2476; Coyle v. Oklahoma, 221 U.S. 559, 565, 31 S.Ct. 688, 689, 55 L.Ed. 853 (1911). 13 The Court found important confirmation of the rationality of the coverage formula in the fact that there was no evidence of "recent racial discrimination involving tests and devices" in State or subdivisions exempted from preclearance. 383 U.S., at 331, 86 S.Ct., at 820. This Court took a similar approach when it affirmed the temporary suspension of all literacy tests by Congress in 1970. Oregon v. Mitchell, supra. The entire Court agreed with Mr. Justice Black's view that the congressional action was justified by the "long history of the discriminatory use of literacy tests to disfranchise voters on account of their race." Id. 400 U.S., at 132, 91 S.Ct., at 263. See id., at 146, 91 S.Ct., at 276 (opinion of Douglas, J.); id., at 216, and n. 94, 91 S.Ct., at 311, and n. 94 (opinion of Harlan, J.); id., at 234-235, 91 S.Ct., at 320 (opinion of BRENNAN, WHITE, and MARSHALL, JJ.); id., at 284, 91 S.Ct., at 344 (opinion of STEWART, J.). That history supported temporary suspension of those few literacy tests still in use, see id., at 147, 91 S.Ct., at 276 (opinion of Douglas, J.), without providing any bailout-like option. In contrast, preclearance involves a broad restraint on all state and local voting practices, regardless of whether they have been, or even could be, used to discriminate. 14 Tr. of Oral Arg. 38. The Court's position dictates this eccentric result by insisting that subdivisions in covered States can be relieved of preclearance only when their State bails out. In my view this also would cast serious doubt on the Act's constitutionality as applied to any State which could not bail out due to the failings of a single subdivision. A rational approach would treat the state and local governments independently for purposes of bailout. If subdivisions in Georgia were free to seek bailout on their own, then a bailout action by the State could properly focus on the State's voting policies. Then, if Georgia were entitled to bailout, preclearance would continue to apply to subdivisions that by their own noncompliance met the coverage criteria of § 4(b). Of course, the situation would be different if the State had contributed, overtly or covertly, to the subdivision's failure to comply. 15 Alaska v. United States, C. A. No. 101-66 (DC Aug. 17, 1966); Alaska v. United States, C. A. No. 2122-71 (DC Mar. 10, 1972). Alaska's 1971 suit was prompted by recoverage of the State under the Act in the 1970 extension. The 1975 extension of the Act also re-established coverage of Alaska, which filed but abandoned yet another bailout suit. Alaska v. United States, C. A. No. 78-0484 (DC May 10, 1979) (stipulated dismissal of action). One other State—Virginia—has attempted to bail out under § 4(a). Virginia v. United States, 386 F.Supp. 1319 (D.C.1974), summarily aff'd, 420 U.S. 901, 95 S.Ct. 820, 42 L.Ed.2d 833 (1975). The court held that Virginia did not satisfy § 4(a) because a state literacy test administered in some localities between 1963 and 1965 was discriminatory in the context of the inferior education offered to Virginia blacks in certain rural counties before that period. 16 The Solicitor General states that Georgia has 159 counties, 530 municipalities, and 188 other subdivisions that now must preclear every voting change, no matter how irrelevant the change might be to discrimination in voting. App. to Brief for Appellees 1a. 17 On a practical level, the District Court argued that since more than 7,000 subdivisions currently are required to preclear voting changes, bailout suits by a small percentage of those subdivisions would swamp that court. 472 F.Supp., at 231-232. In view of the acknowledged difficulties that confront a local government in seeking bailout in the District of Columbia, it is by no means self-evident that the "floodgates" perceived by the court would ever open. Such suits, involving substantial expense as well as uncertainty, would not likely be initiated unless there were a substantial likelihood of success. Moreover, the court's argument ignores the procedures of a bailout suit. Section 4(a) directs the Attorney General not to contest bailout if he finds that the state or local government has not used a discriminatory test or device over the preceding 17 years. 42 U.S.C. § 1973b(a). In fact, the Attorney General consented to bailout in the nine actions under § 4(a) that have succeeded, while only three bailout suits have gone to trial. See nn. 8 and 15, supra. Thus the Department of Justice, not the courts, would shoulder much of the added burden that might arise from recognizing a bailout right for governments like the city of Rome. That burden could hardly be more onerous than the Attorney General's present responsibility for preclearing all voting changes in 7,000 subdivisions. In the first six months of 1979 over 3,200 such voting changes were submitted to the Attorney General, a rate of more than 25 per working day. Letter to Joseph W. Dorn from Drew S. Days III, Assistant Attorney General, Civil Rights Division, U. S. Department of Justice (Aug. 3, 1979), reprinted in App. to Brief for Appellants 1c. These astonishing figures compare unfavorably with those cited by Mr. Justice STEVENS in his Sheffield dissent, where he questioned the efficacy of the Attorney General's review of preclearance requests that then were arriving at the rate of only four a day. United States v. Board of Commissioners of Sheffield, Ala., 435 U.S. 110, 147-148, and nn. 8, 10, 98 S.Ct., 965, 987-988, nn. 8, 10, 55 L.Ed.2d 148 (1978). See Berry v. Doles, 438 U.S. 190, 200-201, 98 S.Ct. 2692, 2698, 57 L.Ed.2d 693 (1978) (POWELL, J., concurring in judgment). It hardly need be added that no senior officer in the Justice Department—much less the Attorney General—could make a thoughtful, personal judgment on an average of 25 preclearance petitions per day. Thus, important decisions made on a democratic basis in covered subdivisions and States are finally judged by unidentifiable employees of the federal bureaucracy, usually without anything resembling an evidentiary hearing. 1 The Voting Rights Act is generally viewed as an exercise of Fifteenth Amendment power. See South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Since vote "dilution" devices are in issue in this case, the rights at stake are more properly viewed as Fourteenth Amendment rights. See City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Nevertheless, this Court has upheld the constitutionality of the Act if it is applied to remedy violations of the Fourteenth Amendment. Gaston County v. United States, 395 U.S. 285, 290, n. 5, 89 S.Ct. 1720, 1722, n. 5, 23 L.Ed.2d 309 (1969). Moreover, the nature of the enforcement powers conferred by the Fourteenth and Fifteenth Amendments has always been treated as coextensive. See, e. g., United States v. Guest, 383 U.S. 745, 784, 86 S.Ct. 1170, 1192, 16 L.Ed.2d 239 (1966) (opinion of BRENNAN, J.); James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979 (1903). For this reason, it is not necessary to differentiate between the Fourteenth and Fifteenth Amendment powers for the purposes of this opinion. 2 I share Mr. Justice POWELL's observation that the factual conclusions respecting the discriminatory effect of the annexations are highly questionable. Ante, at 195-196. I rest my dissent, however, on somewhat broader grounds. 3 At least four Members of the Court in Mobile, held that purposeful discrimination would be prerequisite to establishing a constitutional violation in a case alleging vote dilution under the Fourteenth and Fifteenth Amendments. Ante, at 66-68 (opinion of STEWART, J.). While a majority of the Court might adopt this view, see ante, at 94, 100 S.Ct., at 1514 (opinion of WHITE, J.), the voting procedures adopted by Rome would appear to readily meet the standards of constitutionality established by Mr. Justice STEVENS. See ante, at 90, 100 S.Ct., at 1512. 4 In City of Petersburg v. United States, 354 F.Supp. 1021 (D.C.1972), summarily aff'd, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973), the District Court did find that an annexation scheme could be prohibited solely on the basis of its disparate impact, without a finding of purposeful discrimination on the part of the local government. Petersburg cannot be considered dispositive of the question presented in this case, however. The court did not address any possible constitutional difficulties with its conclusion, and thus it is not clear that these arguments were raised by the parties. An unexplicated summary affirmance by this Court affirms only the judgment, not the reasoning of the District Court. See Hicks v. Miranda, 422 U.S 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). 5 This issue was also not squarely presented or resolved in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). In UJO, the issue was whether the State could constitutionally take racial criteria into account in drawing its district lines where such redistricting was not strictly necessary to eliminate the effects of past discriminatory districting or apportionment. The Court found that use of these criteria was proper, for differing reasons. In an opinion by Mr. Justice WHITE, joined by three other Members of the Court, it was suggested in part that the Voting Rights Act could constitutionally require this. The only question, however, was the constitutionality of state use of racial criteria, vis-a-vis other citizens, and not the constitutionality of congressional Acts which required state governments to use racial criteria against their will. In another part of the opinion, Mr. Justice WHITE reasoned that "the State is [not] powerless to minimize the consequences of racial discrimination by voters when it is regularly practiced at the polls." Id., at 167, 97 S.Ct., at 1010. While States may be empowered to voluntarily use racial criteria in order to minimize the effects of racial-bloc voting, that conclusion does not determine the constitutional authority of Congress to require States to use racial criteria in structuring their governments. 6 See the reference to the legislative history in United Jewish Organizations v. Carey, supra, at 158, 97 S.Ct., at 1006. 7 See, e. g., Burt, Miranda And Title II: A Morganatic Marriage, 1969 S.Ct.Rev. 81. 8 Explicit support can also be derived from Mr. Justice Harlan's dissenting opinion, joined by Mr. Justice STEWART, in Katzenbach v. Morgan, 384 U.S. 641, 659, 86 S.Ct. 1717, 1731, 16 L.Ed.2d 828 (1966). Mr. Justice Harlan clarified the need for the remedial construction of congressional powers. It is also unnecessary, however, to read the majority opinion as establishing the Court's rejection of the remedial construction of the Civil Rights Cases. While Mr. Justice BRENNAN'S majority opinion did contain language suggesting a rejection of the "remedial" construction of the enforcement powers, the opinion also advanced a remedial rationale which supports the determination reached by the Court. Compare the rationales forwarded at 384 U.S., at 654 with the statements, id., at 656, 86 S.Ct., at 1725, 1726. It would be particularly inappropriate to construe Katzenbach v. Morgan, as a rejection of the remedial interpretation of congressional powers in view of this Court's subsequent decision in Oregon v. Mitchell. 9 Since Mr. Justice Black found that congressional powers were more circumscribed when not acting to counter racial discrimination under the Fourteenth Amendment, he did not have to determine the precise nature of congressional powers when they were exercised in the field of racial relations. His analysis of the nationwide ban on literacy tests, also presented in Oregon v. Mitchell, however, is consistent with a remedial interpretation of those powers.

12

446 U.S. 222 100 S.Ct. 1585 64 L.Ed.2d 169 Thomas BALDASAR, Petitioner,v.State of ILLINOIS. No. 77-6219. April 22, 1980. Rehearing Denied June 16, 1980. See 447 U.S. 930, 100 S.Ct. 3030. Michael Mulder, Elgin, Ill., for petitioner. Michael B. Weinstein, Chicago, Ill., for respondent. PER CURIAM. 1 In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated. This case presents the question whether such a conviction may be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. 2 Under Illinois law, theft "not from the person" of property worth less than $150 is a misdemeanor punishable by not more than a year of imprisonment and a fine of not more than $1,000. Ill.Rev.Stat., ch. 38, §§ 16-1(e)(1), 1005-8-3(a)(1), 1005-9-1(a)(2) (1975). A second conviction for the same offense, however, may be treated as a felony with a prison term of one to three years. § 1005-8-1(b)(5). 3 Thomas Baldasar, the petitioner, was convicted of misdemeanor theft in Cook County Circuit Court in May 1975. The record of that proceeding indicates that he was not represented by a lawyer and did not formally waive any right to counsel. Baldasar was fined $159 and sentenced to one year of probation. In November 1975 the State charged him with stealing a shower head worth $29 from a department store. The case was tried to a jury in DuPage County Circuit Court in August 1976. The prosecution introduced evidence of the prior conviction and asked that Baldasar be punished as a felon under the Illinois enhancement statute. Defense counsel objected to the admission of the 1975 conviction. She argued unsuccessfully that because Baldasar had not been represented by a lawyer at the first proceeding, the conviction was too unreliable to support enhancement of the second misdemeanor. App. 7-9. The jury returned a guilty verdict on the felony charge, and Baldasar was sentenced to prison for one to three years. 4 The Illinois Appellate Court affirmed by a divided vote. It emphasized that when the right to counsel in misdemeanor cases was recognized in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), this Court confined that right to prosecutions that " 'end up in the actual deprivation of a person's liberty.' " 52 Ill.App.3d 305, 307, 10 Ill.Dec. 71, 74, 367 N.E.2d 459, 462 (1977), quoting Argersinger, supra, 407 U.S., at 40, 92 S.Ct., at 2014. The Illinois court rejected petitioner's argument that the Sixth and Fourteenth Amendments prevented the imposition of the enhanced prison term. "The fact is," the court wrote, "that [Baldasar] was sentenced to imprisonment for his second theft conviction only and not, as he suggests, sentenced again, and this time to imprisonment, for the first theft conviction." 52 Ill.App.3d, at 310, 10 Ill.Dec., at 75, 367 N.E.2d, at 463. The Supreme Court of Illinois denied leave to appeal, and we granted certiorari. 440 U.S. 956, 99 S.Ct. 1495, 59 L.Ed.2d 769 (1979). 5 For the reasons stated in the concurring opinions, the judgment is reversed, and the case is remanded to the Appellate Court of Illinois, Second District, for further proceedings. 6 It is so ordered. 7 Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice STEVENS join, concurring. 8 In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383, the Court held that "the Sixth and Fourteenth Amendments to the United States Constitution require . . . only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." Id., at 373-374, 99 S.Ct., at 1162. 9 In this case the indigent petitioner, after his conviction of petit larceny, was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense. 10 It seems clear to me that this prison sentence violated the constitutional rule of Scott v. Illinois, supra, and I, therefore, join the opinion and judgment of the Court.* 11 Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEVENS join, concurring. 12 The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799 (1963), held that the appointment of counsel for an indigent criminal defendant is "fundamental and essential to a fair trial." Therefore, the guarantee of counsel was made applicable to the States through the Fourteenth Amendment. Gideon, of course, involved a felony prosecution, but nothing in the opinion suggests that its reasoning was not, like the words of the Sixth Amendment itself, applicable to "all criminal prosecutions." In Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972), we rejected the suggestion that the right to counsel applied only to nonpetty offenses where the accused had a right to a jury trial, and held that "no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial." 13 Seven years later, in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), we considered a question expressly reserved in Argersinger, whether counsel must be provided if imprisonment was an authorized punishment but had not actually been imposed. See Argersinger v. Hamlin, supra, 407 U.S., at 37, 92 S.Ct., at 2012. The Court "conclude[d] . . . that Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings" and "adopt[ed] . . . actual imprisonment as the line defining the constitutional right to appointment of counsel." Scott v. Illinois, supra, 440 U.S., at 373, 99 S.Ct., at 1162. For the reasons stated in Mr. Justice BRENNAN's dissenting opinion in Scott, I remain convinced that that case was wrongly decided. Nevertheless, even if one accepts the line drawn in Scott as the constitutional rule applicable to this case, I think it plain that petitioner's prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction. 14 The court below held that petitioner's earlier conviction for shoplifting three packages of bacon was constitutionally valid under Scott since he received only a fine and probation, and therefore it could be used to elevate his subsequent conviction from a misdemeanor to a felony and to permit him to be sentenced to three years in prison rather than the one year maximum otherwise applicable. This logic is fallacious for the simple reason that petitioner's prior conviction was not valid for all purposes. Specifically, under the rule of Scott and Argersinger, it was invalid for the purpose of depriving petitioner of his liberty. 15 Scott, of course, did not purport to modify or restrict Argersinger. The question in Scott was simply one of "the proper application of our decision" in Argersinger. Scott v. Illinois, supra, at 368, 99 S.Ct., at 1159. The Court concluded that the precise holding in Argersinger, that counsel was required because Argersinger had been imprisoned as a result of the prosecution, expressed the limit of the right to counsel. Accordingly, the Court declined to extend Argersinger to all cases in which imprisonment was an authorized penalty. In the Court's view, Argersinger rested primarily on the conclusion "that incarceration was so severe a sanction that it should not be imposed as a result of a criminal trial unless an indigent defendant had been offered appointed counsel to assist in his defense," 440 U.S., at 372-373, 99 S.Ct., at 1162. 16 That petitioner has been deprived of his liberty "as a result of [the first] criminal trial" could not be clearer. If it had not been for the prior conviction, petitioner could not have been sentenced to more than one year for the present offense.1 Solely because of the previous conviction the second offense was transformed from a misdemeanor into a felony, with all the serious collateral consequences that a felony conviction entails, and he received a sentence that may result in imprisonment for two years in excess of that 1-year maximum. 17 Mr. Justice POWELL's dissenting opinion, post, at 232, asserts that this result is constitutionally permissible because under the enhancement statute the increased punishment was imposed for the second offense rather than the first. I agree that the increased prison sentence in this case is not an enlargement of the sentence for the original offense. If it were, this could be a double jeopardy case. But under the recidivist clause of the Illinois statute, if the State proves a prior conviction for the same offense a completely different range of sentencing options, including a substantially longer term of imprisonment, becomes available. The sentence petitioner actually received would not have been authorized by statute but for the previous conviction. It was imposed as a direct consequence of that uncounseled conviction and is therefore forbidden under Scott and Argersinger. 18 We should not lose sight of the underlying rationale of Argersinger, that unless an accused has "the guiding hand of counsel at every step in the proceedings against him," Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), his conviction is not sufficiently reliable to support the severe sanction of imprisonment. Argersinger v. Hamlin, supra, 407 U.S., at 31-36, 92 S.Ct., at 2009-2012.2 An uncounseled conviction does not become more reliable merely because the accused has been validly convicted of a subsequent offense. For this reason, a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat-offender statute. It is therefore incorrect to say that our decision today creates a "new hybrid" of misdemeanor convictions. Post, at 232 (POWELL, J., dissenting). To the contrary, a rule that held a conviction invalid for imposing a prison term directly, but valid for imposing a prison term collaterally, would be an illogical and unworkable deviation from our previous cases.3 19 Mr. Justice BLACKMUN, concurring. 20 In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), I stated in dissent: 21 "Accordingly, I would hold that an indigent defendant in a state criminal case must be afforded appointed counsel whenever the defendant is prosecuted for a nonpetty criminal offense, that is, one punishable by more than six months' imprisonment, see Duncan v. Louisiana, 391 U.S. 145, [194, 88 S.Ct. 1444, 20 L.Ed.2d 491] (1968); Baldwin v. New York, 399 U.S. 66, [90 S.Ct. 1886, 26 L.Ed.2d 437] (1970), or whenever the defendant is convicted of an offense and is actually subjected to a term of imprisonment, Argersinger v. Hamlin, 407 U.S. 25, [92 S.Ct. 2006, 32 L.Ed.2d 530] (1972). 22 "This resolution, I feel, would provide the 'bright line' that defendants, prosecutors, and trial and appellate courts all deserve and, at the same time, would reconcile on a principled basis the important considerations that led to the decisions in Duncan, Baldwin, and Argersinger." Id., at 389-390, 99 S.Ct., at 1170-1171. 23 I still am of the view that this "bright line" approach would best preserve constitutional values and do so with a measure of clarity for all concerned. Had the Court in Scott v. Illinois adopted that approach, the present litigation, in all probability, would not have reached us. Petitioner Baldasar was prosecuted for an offense punishable by more than six months' imprisonment, and, under my test, was entitled to counsel at the prior misdemeanor proceeding. Since he was not represented by an attorney, that conviction, in my view, is invalid and may not be used to support enhancement. 24 I therefore join the Court's per curiam opinion and its judgment. 25 Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice WHITE and Mr. Justice REHNQUIST join dissenting. 26 Last Term in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), we rejected the claim that Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), requires the appointment of counsel for an indigent charged with a misdemeanor punishable by imprisonment, regardless of whether the defendant actually is sentenced to jail. We held explicitly that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not jailed. 27 In 1975, the petitioner in this case was tried without the appointment of counsel and convicted of a misdemeanor theft. Although the statute authorized imprisonment, petitioner only was fined. The circumstances of that conviction, therefore, were precisely like those of the petitioner in Scott v. Illinois, and the conviction was constitutionally valid. 28 The question presented today is different from that decided in Scott. This case concerns the enhanced sentence imposed on petitioner Baldasar for a subsequent conviction for misdemeanor theft. Petitioner, who was represented by counsel at the second trial, concedes that he could have been sentenced to one year in jail for the second offense. He challenges only the addition of two years to his sentence, an enhancement that was based on his record as a recidivist. The Court holds that, even though the first conviction was valid, the State cannot rely upon it for enhancement purposes following a subsequent valid conviction. This holding undermines the rationale of Scott and Argersinger and leaves no coherent rationale in its place. A constitutionally valid conviction is now constitutionally invalid if relied upon as the predicate for enhancing the sentence of a recidivist. 29 In my view, this result is logically indefensible. More seriously, the courts that try misdemeanor cases daily no longer have clear guidance from this Court. No court can predict with confidence whether a misdemeanor defendant is likely to become a recidivist. The option of not imposing a jail sentence on an uncounseled misdemeanant, expressly preserved by Argersinger and Scott, no longer exists unless the court is willing prospectively to preclude enhancement of future convictions. I dissent both because I believe that Scott dictates a contrary result, and because the courts of our Nation are entitled, at a minimum, to a clear rule on this important question. 30 * Scott held that "actual imprisonment [is] the line defining the constitutional right to appointment of counsel." 440 U.S., at 373, 99 S.Ct., at 1162. Petitioner Baldasar concedes the validity under Scott of his uncounseled theft conviction in 1975. He argues, nevertheless, that the enhanced sentence imposed for the second offense included an element of imprisonment for the first conviction. Consequently, he continues, the enhancement violates the rule of Scott that a conviction may not lead to imprisonment unless retained or appointed counsel is available to the defendant. Although Mr. Justice BLACKMUN applies his own "bright line" approach to the question, four Members of the Court agree with petitioner's contentions. See ante, p. 224 (STEWART, J., concurring); ante, p. 224 (MARSHALL, J., concurring). 31 This line of argument misapprehends the nature of enhancement statutes. These laws, commonplace in our criminal justice system, do not alter or enlarge a prior sentence. If, as in this case, a person with a prior conviction chooses to commit a subsequent crime, he thereby becomes subject to the increased penalty prescribed for the second crime. This Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant. E. g., Moore v. Missouri, 159 U.S. 673, 677, 16 S.Ct. 179, 181, 40 L.Ed. 301 (1895); Oyler v. Boles, 368 U.S. 448, 451, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962). Under Illinois law a second conviction for petty theft may be treated as a felony with a prison term. The sentence imposed upon petitioner was solely a penalty for the second theft. 32 Moreover, petitioner's argument ignores the significance of the constitutional validity of his first conviction. Petitioner questions neither the factual accuracy nor the legality of that conviction. In order to accept his argument, the Court creates a special class of uncounseled misdemeanor convictions. Those judgments are valid for the purposes of their own penalties as long as the defendant receives no prison term. But the Court holds that these convictions are invalid for the purpose of enhancing punishment upon a subsequent misdemeanor conviction. 33 By creating this new hybrid, the Court departs from the position it took after Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), established the right to counsel in felony cases. Following Gideon, the Court consistently held that because an uncounseled felony conviction was constitutionally invalid—and therefore void—it could not be put to other uses in court. In Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967), the Court stated that an uncounseled felony conviction could not be used in a later trial to enhance punishment under a recidivist statute. Loper v. Beto, 405 U.S. 473, 483, 92 S.Ct. 1014, 1019, 31 L.Ed.2d 374 (1972), barred impeachment of a defendant with such a felony conviction, and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), held that a sentencing judge cannot consider a prior uncounseled felony. 34 Misdemeanor convictions, however, have been treated differently. Argersinger held that in misdemeanor cases the right to counsel applies only if the prosecution may "end up in the actual deprivation of a person's liberty." 407 U.S., at 40, 92 S.Ct., at 2014. In a fully considered opinion last Term, the Court ruled in Scott that the Sixth Amendment does not bar an uncounseled misdemeanor conviction if the defendant is not imprisoned.1 35 Logically, just as a constitutionally invalid felony judgment could not be used for sentence enhancement in Burgett, the valid misdemeanor conviction in this case should be available to enhance petitioner's sentence. But the Court makes no effort to defend its ruling on the basis of logic, or even on the policy ground that an uncounseled misdemeanor conviction is too unreliable to support enhancement of a subsequent sentence.2 Instead, four Members of the Court rely on what I view as the incorrect statement that sentence enhancement equals imprisonment for the earlier offense, while a fifth Member adheres to the assertion rejected in Scott that a "bright line" should require counsel for prosecutions that could result in imprisonment for six months or more. Ante, p. 229 (BLACKMUN, J., concurring).3 II 36 The Court's decision not only is analytically unsound, but also will create confusion in local courts and impose greater burdens on state and local governments. The Illinois Appellate Court pointed out that at least 11 Illinois laws, including the statute at issue here, impose enhanced penalties for repeat misdemeanants. 52 Ill.App.3d 305, 308, and n. 1, 10 Ill.Dec. 71, 74, and n. 1, 367 N.E.2d 459, 462, and n. 1 (1977). Most state criminal codes have similar provisions. See, e. g., Note, 35 Ohio St.L.J. 168, 182, n. 72 (1974) (citing Ohio statutes). And the Solicitor General, urging affirmance in this case, emphasized that this decision will hamper enforcement of important federal statutes long in effect.4 Providing counsel for all defendants charged with enhanceable misdemeanors will exacerbate the delays that plague many state misdemeanor courts and will impose unnecessary costs on local governments. Those communities that cannot provide counsel for misdemeanor defendants will lose by default the possibility of enhancing future sentences if criminal conduct persists. The result will be frustration of state policies of deterring recidivism by imposing enhanced penalties. 37 In addition, as the Illinois Appellate Court predicted, today's ruling will incite further litigation claiming that uncounseled misdemeanor convictions cannot be used to impeach a defendant's testimony, or that judges should not consider such convictions in later sentencing determinations. 52 Ill.App.3d, at 310, 10 Ill.Dec., at 75, 367 N.E.2d, at 463. Following today's pronouncement, there is no way to predict the outcome of any such claim. 38 But at least it is clear, regrettably, that the Court has frustrated its own effort in Scott to provide effective guidance to the local courts that try misdemeanor cases every day. I would affirm the decision of the Illinois Appellate Court that faithfully followed our decision in Scott. * It is noteworthy that the brief filed by the State of Illinois in Scott expressly anticipated the result in this case: "When prosecuting an offense the prosecutor knows that by not requesting that counsel be appointed for defendant, he will be precluded from enhancing subsequent offenses. To the degree that the charging of offenses involves a great deal of prosecutorial discretion and selection, the decision to pursue conviction with only limited use comes within proper scope of that discretion." Brief for Respondent in Scott v. Illinois, O.T.1978, No. 77-1177, p. 20 (emphasis added). Mr. Justice BRENNAN adheres to his dissent in Scott v. Illinois, 440 U.S. 367, 375, 99 S.Ct. 1158, 1163, 59 L.Ed.2d 383. 1 The fact that petitioner could be sentenced to some period of incarceration as a result of his second conviction does not, of course, prevent him from objecting to a further deprivation of liberty on the basis of an uncounseled conviction. 2 I cannot agree with Mr. Justice POWELL's unsupported assertion, post, at 233-234, n. 2, that an uncounseled misdemeanor conviction is more likely to be reliable than an uncounseled felony conviction. I had thought that suggestion was squarely rejected in Argersinger. Mr. Justice Douglas' opinion for the Court emphasized the need for the assistance of counsel to assure reliability of misdemeanor convictions: "We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more." Argersinger v. Hamlin, 407 U.S., at 33, 92 S.Ct., at 2010. THE CHIEF JUSTICE concurred in the result, stating: "The issues that must be dealt with in a trial for a petty offense or a misdemeanor may often be simpler than those involved in a felony trial and yet be beyond the capability of a layman. . . . There is little ground, therefore, to assume that a defendant, unaided by counsel, will be any more able adequately to defend himself against the lesser charges that may involve confinement than more serious charges." Id., at 41, 92 S.Ct., at 2014. Mr. Justice POWELL observed: "Many petty offenses will also present complex legal and factual issues that may not be fairly tried if the defendant is not assisted by counsel. Even in relatively simple cases, some defendants, because of ignorance or some other handicap, will be incapable of defending themselves." Id., at 47, 92 S.Ct., at 2017-2018 (opinion concurring in result). In fact, as the opinion for the Court recognized, misdemeanor convictions may actually be less reliable than felony convictions. "[T]he volume of misdemeanor cases . . . may create an obsession for speedy dispositions, regardless of the fairness of the result. . . . 'The misdemeanor trial is characterized by insufficient and frequently irresponsible preparation on the part of the defense, the prosecution, and the court. Everything is rush, rush.' . . . There is evidence of the prejudice which results to misdemeanor defendants from this 'assembly-line justice.' " Id., at 34-36, 92 S.Ct., at 2011-2012 (footnote and citations omitted). Moreover, if the case is tried to a jury, as was petitioner's first conviction, it is entirely possible that jurors may be less scrupulous about applying the reasonable-doubt standard if the offense charged is "only a misdemeanor." 3 The dissent expresses concern that our decision will impose unacceptable economic burdens on state and local governments. Post, at 235. I do not share that view. Not all misdemeanor defendants, of course, are indigent. See Scott v. Illinois, 440 U.S. 367, 385, and n. 16, 99 S.Ct. 1158, 1168, and n. 16, 59 L.Ed.2d 383 (1979) (BRENNAN, J., dissenting). Where the defendant is indigent, counsel will be provided in the first trial unless the prosecution does not seek a jail term. A great many States provide counsel in all cases where imprisonment is authorized, even though counsel is not constitutionally required. See id., at 386-387, n. 18, 99 S.Ct., at 1168-1169, n. 18. Further, not all subsequent offenses are subject to enhancement, and not all previous offenses are predicate offenses for enhancement purposes. Thus the number of cases in which the State must decide whether to provide counsel solely to preserve its ability to enhance a subsequent offense will be only a fraction of the total. In many of those remaining cases, the judgment whether future misconduct is likely, and whether the first offense is serious enough to warrant its use for enhancement, will be a relatively easy exercise of prosecutorial discretion. The economic effect of our decision today will be miniscule compared to that of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Argersinger v. Hamlin, supra. But whatever that cost may be, it cannot outweigh the Sixth Amendment command that no one may be imprisoned as a result of a conviction in which he was denied the assistance of counsel. 1 Despite reservations, I joined the decision in Scott v. Illinois, because it was consistent with Argersinger v. Hamlin, 407 U.S., at 44, 92 S.Ct., at 2015 (POWELL, J., concurring in result), and it "provide[d] clear guidance to the hundreds of courts across the country that confront this problem daily." 440 U.S., at 374, 99 S.Ct., at 1163 (POWELL, J., concurring). 2 Although only the opinion of Mr. Justice MARSHALL mentions the issue, ante, at 227-228, n. 2, petitioner urges that an uncounseled misdemeanor conviction is too unreliable to support sentence enhancement for later offenses. Compared to a felony judgment, however, most uncounseled misdemeanor convictions are far more likely to be reliable. In my separate opinion in Argersinger, I expressed the view that counsel should be provided in certain misdemeanor cases not involving the possibility of a jail sentence. 407 U.S., at 47-50, 92 S.Ct., at 2017-2019. That view was rejected by the Court. It cannot be denied, however, that the issues in the great majority of misdemeanor cases are not complicated and the facts often are not in dispute. In addition, most such cases are tried to a judge. But there is a more fundamental answer to petitioner's argument. Here, the uncounseled conviction is conceded to be valid and thus must be presumed reliable. 3 Today's decision is all the more puzzling in view of the Court's recent ruling in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Lewis held that an uncounseled felony conviction is a proper predicate for imposing federal sanctions for possession of a firearm by a felon. Although I dissented on statutory grounds in Lewis, the opinion's constitutional holding squarely conflicts with today's decision. Unlike misdemeanors, all uncounseled felony judgments are constitutionally invalid. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Yet Lewis held that even though the federal firearm statute imposes a prison sentence solely because the defendant had an uncounseled—and thus void—felony conviction on his record, that procedure does not use the void conviction to " 'support guilt or enhance punishment.' " 445 U.S., at 67, 100 S.Ct., at 915, quoting Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967). In this case, the Court refuses to permit sentence enhancement on the basis of a constitutionally valid misdemeanor conviction. The conflict between the two holdings could scarcely be more violent. 4 Brief for United States as Amicus Curiae 2, citing 8 U.S.C. § 1325 (illegal entry into United States by alien); and 2, n. 2, citing 15 U.S.C. § 1263 (shipment of misbranded or banned hazardous substances).

01

446 U.S. 14 100 S.Ct. 1468 64 L.Ed.2d 15 Norman A. CARLSON, Director, Federal Bureau of Prisons, et al., Petitioners,v.Marie GREEN, Administratrix of the Estate of Joseph Jones, Jr. No. 78-1261. Argued Jan. 7, 1980. Decided April 22, 1980. Syllabus Respondent brought suit in Federal District Court in Indiana on behalf of her deceased son's estate, alleging that her son while a prisoner in a federal prison in Indiana suffered personal injuries from which he died because petitioner prison officials violated, inter alia, his Eighth Amendment rights by failing to give him proper medical attention. Asserting jurisdiction under 28 U.S.C. § 1331(a), respondent claimed compensatory and punitive damages. The District Court held that the allegations pleaded a violation of the Eighth Amendment's proscription against cruel and unusual punishment, thus giving rise to a cause of action for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, under which it was established that victims of a constitutional violation by a federal official have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right. But the court dismissed the complaint on the ground that, although the decedent could have maintained the action if he had survived, the damages remedy as a matter of federal law was limited to that provided by Indiana's survivorship and wrongful-death laws, which the court construed as making the damages available to the decedent's estate insufficient to meet § 1331(a)'s $10,000 jurisdictional-amount requirement. While otherwise agreeing with the District Court, the Court of Appeals held that the latter requirement was satisfied because whenever a state survivorship statute would abate a Bivens -type action, the federal common law allows survival of the action. Held: 1. A Bivens remedy is available to respondent even though the allegations could also support a suit against the United States under the Federal Tort Claims Act (FTCA). Pp. 1471-1474. (a) Neither of the situations in which a cause of action under Bivens may be defeated are present here. First, the case involves no special factors counseling hesitation in the absence of affirmative action by Congress, petitioners not enjoying such independent status in our constitutional scheme as to suggest that judicially created remedies against them might be inappropriate. Second, there is no explicit congressional declaration that persons injured by federal officers' violations of the Eighth Amendment may not recover damages from the officers but must be remitted to another remedy, equally effective in Congress' view. There is nothing in the FTCA or its legislative history to show that Congress meant to pre-empt a Bivens remedy or to create an equally effective remedy for constitutional violations. Rather, in the absence of a contrary expression from Congress, the FTCA's provision creating a cause of action against the United States for intentional torts committed by federal law enforcement officers, contemplates that victims of the kind of intentional wrongdoing alleged in the complaint in this case shall have an action under the FTCA against the United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights. Pp. 1471-1472. (b) The following factors also support the conclusion that Congress did not intend to limit respondent to an FTCA action: (i) the Bivens remedy, being recoverable against individuals, is a more effective deterrent than the FTCA remedy against the United States; (ii) punitive damages may be awarded in a Bivens suit, but are statutorily prohibited in an FTCA suit; (iii) a plaintiff cannot opt for a jury trial in an FTCA action as he may in a Bivens suit; and (iv) an action under the FTCA exists only if the States in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward. Pp. 1472-1474. 2. Since Bivens actions are a creation of federal law, the question whether respondent's action survived her son's death is a question of federal law. Only a uniform federal rule of survivorship will suffice to redress the constitutional deprivation here alleged and to protect against repetition of such conduct. Robertson v. Wegmann, 436 U.S. 584, distinguished. Pp. 1474-1475. 581 F.2d 669 (7th Cir.), affirmed. Kenneth S. Geller, Washington, D. C., for petitioners. Michael E. Deutsch, Chicago, Ill., for respondent. Mr. Justice BRENNAN delivered the opinion of the Court. 1 Respondent brought this suit in the District Court for the Southern District of Indiana on behalf of the estate of her deceased son, Joseph Jones, Jr., alleging that he suffered personal injuries from which he died because the petitioners, federal prison officials, violated his due process, equal protection, and Eighth Amendment rights.1 Asserting jurisdiction under 28 U.S.C. § 1331(a), she claimed compensatory and punitive damages for the constitutional violations. Two questions are presented for decision: (1) Is a remedy available directly under the Constitution, given that respondent's allegations could also support a suit against the United States under the Federal Tort Claims Act?2 And (2) if so, is survival of the cause of action governed by federal common law or by state statutes? 2 * The District Court held that under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the allegations set out in note 1, supra, pleaded a violation of the Eighth Amendment's proscription against infliction of cruel and unusual punishment,3 giving rise to a cause of action for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The court recognized that the decedent could have maintained this action if he had survived, but dismissed the complaint because in its view the damages remedy as a matter of federal law was limited to that provided by Indiana's survivorship and wrongful-death laws and, as the court construed those laws, the damages available to Jones' estate failed to meet § 1331(a)'s $10,000 jurisdictional-amount requirement. The Court of Appeals for the Seventh Circuit agreed that an Eighth Amendment violation was pleaded under Estelle and that a cause of action was stated under Bivens, but reversed the holding that § 1331(a)'s jurisdictional-amount requirement was not met.4 Rather, the Court of Appeals held that § 1331(a) was satisfied because "whenever the relevant state survival statute would abate a Bivens -type action brought against defendants whose conduct results in death, the federal common law allows survival of the action." 581 F.2d 669, 675 (1978). The court reasoned that the Indiana law, if applied, would "subvert" "the policy of allowing complete vindication of constitutional rights" by making it "more advantageous for a tortfeasor to kill rather than to injure." Id., at 674. We granted certiorari. 442 U.S. 940, 99 S.Ct. 2880, 61 L.Ed.2d 309 (1979). We affirm. II 3 Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right. Such a cause of action may be defeated in a particular case, however, in two situations. The first is when defendants demonstrate "special factors counselling hesitation in the absence of affirmative action by Congress." 403 U.S., at 396, 91 S.Ct., at 2004; Davis v. Passman, 442 U.S. 228, 245, 99 S.Ct. 2264, 2277, 60 L.Ed.2d 846 (1979). The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. Bivens, supra, at 397, 91 S.Ct., at 2005; Davis v. Passman, supra, at 245-247, 99 S.Ct., at 2277-2278. 4 Neither situation obtains in this case. First, the case involves no special factors counselling hesitation in the absence of affirmative action by Congress. Petitioners do not enjoy such independent status in our constitutional scheme as to suggest that judicially created remedies against them might be inappropriate. Davis v. Passman, supra, at 246, 99 S.Ct., at 2277. Moreover, even if requiring them to defend respondent's suit might inhibit their efforts to perform their official duties, the qualified immunity accorded them under Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), provides adequate protection. See Davis v. Passman, supra, at 246, 99 S.Ct., at 2277. 5 Second, we have here no explicit congressional declaration that persons injured by federal officers' violations of the Eighth Amendment may not recover money damages from the agents but must be remitted to another remedy, equally effective in the view of Congress. Petitioners point to nothing in the Federal Tort Claims Act (FTCA) or its legislative history to show that Congress meant to pre-empt a Bivens remedy or to create an equally effective remedy for constitutional violations.5 FTCA was enacted long before Bivens was decided, but when Congress amended FTCA in 1974 to create a cause of action against the United States for intentional torts committed by federal law enforcement officers, 28 U.S.C. § 2680(h), the congressional comments accompanying that amendment made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action: 6 "[A]fter the date of enactment of this measure, innocent individuals who are subjected to raids [like that in Bivens ] will have a cause of action against the individual Federal agents and the Federal Government. Furthermore, this provision should be viewed as a counterpart to the Bivens case and its progenty [sic ], in that it waives the defense of sovereign immunity so as to make the Government independently liable in damages for the same type of conduct that is alleged to have occurred in Bivens (and for which that case imposes liability upon the individual Government officials involved)." S.Rep.No.93-588, p. 3 (1973) (emphasis supplied). 7 In the absence of a contrary expression from Congress, § 2680(h) thus contemplates that victims of the kind of intentional wrongdoing alleged in this complaint shall have an action under FTCA against the United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights. 8 This conclusion is buttressed by the significant fact that Congress follows the practice of explicitly stating when it means to make FTCA an exclusive remedy. See 38 U.S.C. § 4116(a), 42 U.S.C. § 233(a), 42 U.S.C. § 2458a, 10 U.S.C. § 1089(a), and 22 U.S.C. § 817(a) (malpractice by certain Government health personnel); 28 U.S.C. § 2679(b) (operation of motor vehicles by federal employees); and 42 U.S.C. § 247b(k) (manufacturers of swine flu vaccine). Furthermore, Congress has not taken action on other bills that would expand the exclusivity of FTCA. See, e. g., S.695, 96th Cong., 1st Sess. (179); H.R.2659, 96th Cong., 1st Sess. (1979); S.3314, 95th Cong., 2d Sess. (1978). 9 Four additional factors, each suggesting that the Bivens remedy is more effective than the FTCA remedy, also support our conclusion that Congress did not intend to limit respondent to an FTCA action. First, the Bivens remedy, in addition to compensating victims, serves a deterrent purpose. SeeButz v. Economou, supra, at 505, 98 S.Ct., at 2910.6 Because the Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA remedy against the United States. It is almost axiomatic that the threat of damages has a deterrent effect,7 Imbler v. Pachtman, 424 U.S. 409, 442, 96 S.Ct. 984, 1000, 47 L.Ed.2d 128 (1976) (WHITE, J., concurring in judgment), surely particularly so when the individual official faces personal financial liability. 10 Petitioners argue that FTCA liability is a more effective deterrent because the individual employees responsible for the Government's liability would risk loss of employment8 and because the Government would be forced to promulgate corrective policies. That argument suggests, however, that the superiors would not take the same actions when an employee is found personally liable for violation of a citizen's constitutional rights. The more reasonable assumption is that responsible superiors are motivated not only by concern for the public fisc but also by concern for the Government's integrity. 11 Second, our decisions, although not expressly addressing and deciding the question, indicate that punitive damages may be awarded in a Bivens suit. Punitive damages are "a particular remedial mechanism normally available in the federal courts," Bivens, 403 U.S., at 397, 91 S.Ct., at 2005, and are especially appropriate to redress the violation by a Government official of a citizen's constitutional rights. Moreover, punitive damages are available in "a proper" § 1983 action, Carey v. Piphus, 435 U.S. 247, 257, n. 11, 98 S.Ct. 1042, 1049, n. 11, 55 L.Ed.2d 252 (1978) (punitive damages not awarded because District Court found defendants "did not act with a malicious intention to deprive respondents of their rights or to do them other injury"),9 and Butz v. Economou, suggests that the "constitutional design" would be stood on its head if federal officials did not face at least the same liability as state officials guilty of the same constitutional transgression. 438 U.S., at 504, 98 S.Ct., at 2910. But punitive damages in an FTCA suit are statutorily prohibited. 28 U.S.C. § 2674. Thus FTCA is that much less effective than a Bivens action as a deterrent to unconstitutional acts. 12 Third, a plaintiff cannot opt for a jury in an FTCA action, 28 U.S.C. § 2402, as he may in a Bivens suit.10 Petitioners argue that this is an irrelevant difference because juries have been biased against Bivens claimants. Reply Brief for Petitioners 7, and n. 6; Brief for Petitioners 30-31, n. 30. Significantly, however, they do not assert that judges trying the claims as FTCA actions would have been more receptive, and they cannot explain why the plaintiff should not retain the choice. 13 Fourth, an action under FTCA exists only if the State in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward. 28 U.S.C. § 1346(b) (United States liable "in accordance with the law of the place where the act or omission occurred"). Yet it is obvious that the liability of federal officials for violations of citizens' constitutional rights should be governed by uniform rules. See Part III, infra. The question whether respondent's action for violations by federal officials of federal constitutional rights should be left to the vagaries of the laws of the several States admits of only a negative answer in the absence of a contrary congressional resolution. 14 Plainly FTCA is not a sufficient protector of the citizens' constitutional rights, and without a clear congressional mandate we cannot hold that Congress relegated respondent exclusively to the FTCA remedy. III 15 Bivens actions are a creation of federal law and, therefore, the question whether respondent's action survived Jones' death is a question of federal law. See Burks v. Lasker, 441 U.S. 471, 476, 99 S.Ct. 1831, 1836, 60 L.Ed.2d 404 (1979). Petitioners, however, would have us fashion a federal rule of survivorship that incorporates the survivorship laws of the forum State, at least where the state law is not inconsistent with federal law. Respondent argues, on the other hand, that only a uniform federal rule of survivorship is compatible with the goal of deterring federal officials from infringing federal constitutional rights in the manner alleged in respondent's complaint. We agree with respondent. Whatever difficulty we might have resolving the question were the federal involvement less clear, we hold that only a uniform federal rule of survivorship will suffice to redress the constitutional deprivation here alleged and to protect against repetition of such conduct. 16 In short, we agree with and adopt the reasoning of the Court of Appeals, 581 F.2d, at 674-675 (footnote omitted): 17 "The essentiality of the survival of civil rights claims for complete vindication of constitutional rights is buttressed by the need for uniform treatment of those claims, at least when they are against federal officials. As this very case illustrates, uniformity cannot be achieved if courts are limited to applicable state law. Here the relevant Indiana statute would not permit survival of the claim, while in Beard [v. Robinson, 563 F.2d 331 (CA7 1977),] the Illinois statute permitted survival of the Bivens action. The liability of federal agents for violation of constitutional rights should not depend upon where the violation occurred. . . . In sum, we hold that whenever the relevant state survival statute would abate a Bivens -type action brought against defendants whose conduct results in death, the federal common law allows survival of the action." 18 Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), holding that a § 1983 action would abate in accordance with Louisiana survivorship law is not to the contrary. There the plaintiff's death was not caused by the acts of the defendants upon which the suit was based.11 Moreover, Robertson expressly recognized that to prevent frustration of the deterrence goals of § 1983 (which in part also underlie Bivens actions, see Part II, supra ) "[a] state official contemplating illegal activity must always be prepared to face the prospect of a § 1983 action being filed against him." 436 U.S., at 592, 98 S.Ct., at 1996. A federal official contemplating unconstitutional conduct similarly must be prepared to face the prospect of aBivens action. A uniform rule that claims such as respondent's survive the decedent's death is essential if we are not to "frustrate in [an] important way the achievement" of the goals of Bivens actions. Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 702, 86 S.Ct. 1107, 1111, 16 L.Ed.2d 192 (1966).12 19 Affirmed. 20 Mr. Justice POWELL, with whom Mr. Justice STEWART joins, concurring in the judgment. 21 Although I join the judgment, I do not agree with much of the language in the Court's opinion. The Court states the principles governing Bivens actions as follows: 22 "Bivens established that the victims of a constitutional violation . . . have a right to recover damages. . . . Such a cause of action may be defeated . . . in two situations. The first is when defendants demonstrate 'special factors counselling hesitation in the absence of affirmative action by Congress.' . . . The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. . . ." Ante, at 18-19 (emphasis in original). 23 The foregoing statement contains dicta that go well beyond the prior holdings of this Court. 24 * We are concerned here with inferring a right of action for damages directly from the Constitution. In Davis v. Passman, 442 U.S. 228, 242, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court said that persons who have "no [other] effective means" of redress "must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights." The Davis rule now sets the boundaries of the "principled discretion" that must be brought to bear when a court is asked to infer a private cause of action not specified by the enacting authority. Id., at 252, 99 S.Ct., at 2280 (POWELL, J., dissenting). But the Court's opinion, read literally, would restrict that discretion dramatically. Today we are told that a court must entertain a Bivens suit unless the action is "defeated" in one of two specified ways. 25 Bivens recognized that implied remedies may be unnecessary when Congress has provided "equally effective" alternative remedies. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971); see Davis v. Passman, supra, at 248, 99 S.Ct., at 2278. The Court now volunteers the view that a defendant cannot defeat a Bivens action simply by showing that there are adequate alternative avenues of relief. The defendant also must show that Congress "explicitly declared [its remedys to be asubstitute for recovery directly under the Constitution and viewed [it] as equally effective." Ante, at 18-19 (emphasis in original). These are unnecessarily rigid conditions. The Court cites no authority and advances no policy reason—indeed no reason at all—for imposing this threshold burden upon the defendant in an implied remedy case. 26 The Court does implicitly acknowledge that Congress possesses the power to enact adequate alternative remedies that would be exclusive. Yet, today's opinion apparently will permit Bivens plaintiffs to ignore entirely adequate remedies if Congress has not clothed them in the prescribed linguistic garb. No purpose is served by affording plaintiffs a choice of remedies in these circumstances. Nor is there any precedent for requiring federal courts to bind themselves to congressional intent expressed in language other than that which we prescribe. 27 A defendant also may defeat the Bivens remedy under today's decision if "special factors" counsel "hesitation." But the Court provides no further guidance on this point. The opinion states simply that no such factors are present in this case. The Court says that petitioners enjoy no "independent status in our constitutional scheme" that would make judicially created remedies inappropriate. Ante, at 19. But the implication that official status may be a "special factor" is withdrawn in the sentence that follows, which concludes that qualified immunity affords all the protection necessary to ensure the effective performance of official duties. No other factors relevant to the purported exception are mentioned. 28 One is left to wonder whether judicial discretion in this area will hereafter be confined to the question of alternative remedies, which is in turn reduced to the single determination that congressional action does or does not comport with the specifications prescribed by this Court. Such a drastic curtailment of discretion would be inconsistent with the Court's long-standing recognition that Congress is ultimately the appropriate body to create federal remedies. See ante, at 19-20; Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 397, 91 S.Ct., at 2005. A plaintiff who seeks his remedy directly under the Constitution asks the federal courts to perform an essentially legislative task. In this situation, as Mr. Justice Harlan once said, a court should "take into account [a range of policy considerations] at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy." Bivens, supra, at 407, 91 S.Ct., at 2010. The Court does not explain why this discretion should be limited in the manner announced today. 29 The Court's absolute language is all the more puzzling because it comes in a case where the implied remedy is plainly appropriate under any measure of discretion. The Federal Tort Claims Act, on which petitions rely, simply is not an adequate remedy.1 And there are reasonably clear indications that Congress did not intend that statute to displace Bivens claims. See ante, at 19-20. No substantial contrary policy has been identified, and I am aware of none. I therefore agree that a private damages remedy properly is inferred from the Constitution in this case. But I do not agree that Bivens plaintiffs have a "right" to such a remedy whenever the defendants fails to show that Congress has "provided an [equally effective] alternative remedy which it explicitly declared to be a substitute . . . ." In my view, the Court's willingness to infer federal causes of action that cannot be found in the Constitution or in a statute denigrates the doctrine of separation of powers and hardly comports with a rational system of justice. Cf. Cannon v. University of Chicago, 441 U.S. 677, 730-749, 99 S.Ct. 1946, 1974-85, 60 L.Ed.2d 560 (1979) (POWELL, J., dissenting).2 II 30 In Part III of its opinion, the Court holds that " 'whenever the relevant state survival statute would abate a Bivens -type action brought against defendants whose conduct results in death, the federal common law allows survival of the action.' " Ante, at 24, quoting 581 F.2d 669, 675 (CA7 1978). I agree that the relevant policies require the application of federal common law to allow survival in this case. 31 It is not "obvious" to me, however, that "the liability of federal officials for violations of citizens' constitutional rights should be governed by uniform rules" in every case. Ante, at 23; see ante, at 23-24. On the contrary, federal courts routinely refer to state law to fill the procedural gaps in national remedial schemes. The policy against invoking the federal common law except where necessary to the vitality of a federal claim is codified in 42 U.S.C. § 1988, which directs that state law ordinarily will govern those aspects of § 1983 actions not covered by the "laws of the United States." 32 The Court's opinion in this case does stop short of mandating uniform rules to govern all aspects of Bivens actions. Ante, at 24-25, n. 11. But the Court also says that the preference for state law embodied in § 1988 is irrelevant to the selection of rules that will govern actions against federal officers under Bivens. Ibid. I see no basis for this view. In Butz v. Economou, 438 U.S. 478, 498-504, and n. 25, 98 S.Ct. 2894, 2906-2910, 57 L.Ed.2d 895 (1978), the Court thought it unseemly that different rules should govern the liability of federal and state officers for similar constitutional wrongs. I would not disturb that understanding today. 33 Mr. Chief Justice BURGER, dissenting. 34 Although I would be prepared to join an opinion giving effect to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)—which I thought wrongly decided I cannot join today's unwarranted expansion of that decision. The Federal Tort Claims Act provides an adequate remedy for prisoners' claims of medical mistreatment. For me, that is the end of the matter. 35 Under the test enunciated by the Court the adequacy of the Tort Claims Act remedy is an irrelevancy. The sole inquiry called for by the Court's new test is whether "Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution." Ante, at 18-19 (first emphasis added).1 That test would seem to permit a person whose constitutional rights have been violated by a state officer to bring suit under Bivens even though Congress in 42 U.S.C. § 1983 has already fashioned an equally effective remedy. Cf. Turpin v. Mailet, 591 F.2d 426 (CA2 1979) (en banc). After all, there is no "explicit congressional declaration,"ante, at 1472, that § 1983 was meant to pre-empt a Bivens remedy. Taken to its logical conclusion, the Court's test, coupled with its holding on survivorship,ante, at 1474, and n. 1, suggests that the plaintiff in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), might have escaped the impact of that decision by filing a separate Bivens -type claim. And the Court's test throws into doubt the decision in Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), where we held that § 717 of the Civil Rights Act of 1964 provides the exclusive remedy for claims of discrimination in federal employment. In enacting § 717 Congress did not say the magic words which the Court now seems to require.2 36 Until today, I had thought that Bivens was limited to those circumstances in which a civil rights plaintiff had no other effective remedy. See 403 U.S., at 410, 91 S.Ct., at 2011 (Harlan, J., concurring in judgment); Davis v. Passman, 442 U.S. 228, 245, and n. 23, 99 S.Ct. 2264, 2277, 60 L.Ed.2d 846 (1979). Now it would seem that implication of a Bivens -type remedy is permissible even though a victim of unlawful official action may be fully recompensed under an existing statutory scheme. I have difficulty believing that the Court has thought through, and intends the natural consequences of, this novel test; I cannot escape the conclusion that in future cases the Court will be obliged to retreat from the language of today's decision.3 37 Mr. Justice REHNQUIST, dissenting. 38 The Court today adopts a formalistic procedural approach for inferring private damages remedies from constitutional provisions that in my view still further highlights the wrong turn this Court took in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Although ordinarily this Court should exercise judicial restraint in attempting to attain a wise accommodation between liberty and order under the Constitution, to dispose of this case as if Bivens were rightly decided would in the words of Mr. Justice Frankfurter be to start with an "unreality." Kovacs v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 455, 93 L.Ed. 513 (1949) (concurring opinion). Bivens is a decision "by a closely divided court, unsupported by the confirmation of time," and, as a result of its weak precedential and doctrinal foundation, it cannot be viewed as a check on "the living process of striking a wise balance between liberty and order as new cases come here for adjudication." Cf. 336 U.S., at 89, 69 S.Ct., at 455; B. & W. Taxicab Co. v. B. & Y. Taxicab Co., 276 U.S. 518, 532-533, 48 S.Ct. 404, 408-09, 72 L.Ed. 681 (1928) (Holmes, J., dissenting); Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), overruling Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968).1 39 The Court concludes that Congress intended a Bivens action under the Eighth Amendment to exist concurrently with actions under the Federal Tort Claims Act (FTCA) because Congress did not indicate that it meant the FTCA "to preempt a Bivens remedy or to create an equally effective remedy for constitutional violations," ante, p. 19, nor are there any " 'special factors counselling [judicial] hesitation.' " Ante, at 18.2 The Court's opinion otherwise lacks even an arguably principled basis for deciding in what circumstances an inferred constitutional damages remedy is appropriate and for defining the contours of such a remedy. And its "practical" conclusion is all the more anomalous in that Congress in 1974 amended the FTCA to permit private damages recoveries for intentional torts committed by federal law enforcement officers, thereby enabling persons injured by such officers' violations of their federal constitutional rights in many cases to obtain redress for their injuries.3 40 In my view, it is "an exercise of power that the Constitution does not give us" for this Court to infer a private civil damages remedy from the Eighth Amendment or any other constitutional provision. Bevins, 403 U.S., at 428, 91 S.Ct., at 2020 (Black, J., dissenting). The creation of such remedies is a task that is more appropriately viewed as falling within the legislative sphere of authority. Ibid. 41 * Prior to Bivens, this Court in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), held that an individual who brought suit against federal agents for an alleged violation of his constitutional rights had in a strictly procedural sense stated a claim that "arises" under the Constitution and must be entertained by federal courts. Id., at 681-682, 66 S.Ct., at 775-76. The Court did not, however, hold that the Constitution confers a substantive right to damages in this context. Rather, it merely decided that the proper disposition of the suit was a ruling on the merits, not dismissal for want of jurisdiction.4 42 Despite the lack of a textual constitutional foundation or any precedential or other historical support, Bivens inferred a constitutional damages remedy from the Fourth Amendment, authorizing a party whose constitutional rights had been infringed by a federal officer to recover damages from that officer. Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), subsequently held that such a remedy could also be inferred from the Due Process Clause of the Fifth Amendment. And the Court today further adds to the growing list of Amendments from which a civil damages remedy may be inferred. In so doing, the Court appears to be fashioning for itself a legislative role resembling that once thought to be the domain of Congress, when the latter created a damages remedy for individuals whose constitutional rights had been violated by state officials, 42 U.S.C. § 1983, and separately conferred jurisdiction on federal courts to hear such actions, 28 U.S.C. § 1343. See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). A. 43 In adding to the number of Amendments from which causes of actions may be inferred, the Court does not provide any guidance for deciding when a constitutional provision permits an inference that an individual may recover damages and when it does not. For example, the Eighth Amendment, from which the Court infers a cause of action today, also provides that "[e]xcessive bail shall not be required, nor excessive fines imposed . . . ." If a cause of action be inferred for violations of these and other constitutional rights—such as the Seventh Amendment right to a jury trial, the Sixth Amendment right to a speedy trial, and the Fifth Amendment privilege against compulsory self-incrimination—I think there is an ever-increasing likelihood that the attention of federal courts will be diverted from needs that in this policy-making context might well be considered to be more pressing. As observed by Mr. Justice Black at the time this Court "inferred" a cause of action under only the Fourth Amendment: 44 "My fellow Justices on this Court and our brethren throughout the federal judiciary know only too well the time-consuming task of conscientiously poring over hundreds of thousands of pages of factual allegations of misconduct by police, judicial, and corrections officials. Of course, there are instances of legitimate grievances, but legislators might well desire to devote judicial resources to other problems of a more serious nature." 403 U.S., at 428, 91 S.Ct., at 2020-2021 (dissenting opinion). 45 Because the judgments that must be made here involve many "competing policies, goals, and priorities" that are not well suited for evaluation by the Judicial Branch, in my view "[t]he task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the legislatures of the States." Id., at 429, 91 S.Ct., at 2021. B 46 It is clear under Art. III of the Constitution that Congress has broad authority to establish priorities for the allocation of judicial resources in defining the jurisdiction of federal courts. Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264 (1869); Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147 (1850). Congress thus may prevent the federal courts from deciding cases that it believes would be an unwarranted expenditure of judicial time or would impair the ability of federal courts to dispose of matters that Congress considers to be more important. In reviewing Congress' judgment in this area, "[w]e are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution. . . . " Ex parte McCardle, supra, at 514, 19 L.Ed. 264. As stated by Mr. Justice Chase in Turner v. Bank of North America, 4 Dall. 8, 10, 1 L.Ed. 718, n. (1799): 47 "The notion has frequently been entertained, that the federal Courts derive their judicial power immediately from the constitution; but the political truth is, that the disposal of the judicial power, (except in a few specified instances) belongs to congress. If congress has given the power to this Court, we posess [sic ] it, not otherwise: and if congress has not given the power to us, or to any other Court, it still remains at the legislative disposal. Besides, congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of federal Courts, to every subject, in every form, which the constitution might warrant." See also Sheldon v. Sill, supra, at 449, 12 L.Ed. 1147. 48 While it is analytically correct to view the question of jurisdiction as distinct from that of the appropriate relief to be granted, see Davis v. Passman, supra, at 239-240, n. 18, 99 S.Ct., at 2274, n. 18, congressional authority here may all too easily be undermined when the judiciary, under the guise of exercising its authority to fashion appropriate relief, creates expansive damages remedies that have not been authorized by Congress. Just as there are some tasks that Congress may not impose on an Art. III court, Gordon v. United States, 2 Wall. 561, 17 L.Ed. 921 (1864); United States v. Klein, 13 Wall. 128, 20 L.Ed. 519 (1872), there are others that an Art. III court may not simply seize for itself without congressional authorization. This concern is initially reflected in the notion that federal courts do not have the authority to act as general courts of common law absent congressional authorization. 49 In Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963) the Court observed that "[a]s respects the creation by the federal courts of common-law rights, it is perhaps needless to state that we are not in the free-wheeling days antedating Erie R. Co. v. Tompkins, 304 U.S. 64, [58 S.Ct. 817, 82 L.Ed. 1188] [1938]." Erie expressly rejected the view, previously adopted in Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 (1842), that federal courts may declare rules of general common law in civil fields. And it has long been established that federal courts lacks the authority to create a common law of crimes. United States v. Hudson and Goodwin, 7 Cranch 32, 3 L.Ed. 259 (1812). Hudson & Goodwin rested on the notion that: 50 "The powers of the general Government are made up of concessions from the several states—whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constituent part of those concessions—that power is to be exercised by Courts organized for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the Courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the constitution, and of which the legislative power cannot deprive it. All other Courts created by the general Government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general Government will authorize them to confer." Id., at 33, 3 L.Ed. 259. Thus, the Court in Hudson concluded: 51 "It is not necessary to inquire whether the general Government, in any and what extent, possesses the power of conferring on its Courts a jurisdiction in cases similar to the present; it is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to those Courts as a consequence of their creation." Ibid. 52 In my view the authority of federal courts to fashion remedies based on the "common law" of damages for constitutional violations likewise falls within the legislative domain, and does not exist where not conferred by Congress. 53 The determination by federal courts of the scope of such a remedy involves the creation of a body of common law analogous to that repudiated in Erie and Hudson & Goodwin. This determination raises such questions as the types of damages recoverable, the injuries compensable, the degree of intent required for recovery, and the extent to which official immunity will be available as a defense. And the creation of such a remedy by federal courts has the effect of diverting judicial resources from areas that Congress has explicitly provided for by statute. It thereby may impair the ability of federal courts to comply with judicial priorities established by Congress. 54 Congress' general grant of jurisdiction to federal courts under 28 U.S.C. § 1331 does not permit those courts to create a remedy for the award of damages whenever an individual's constitutional rights have been violated. While § 1331 grants federal courts jurisdiction to hear cases that arise under the Constitution, it makes no provision whatsoever for the award of such damages, nor, as noted above, is there any precedential or other historical support for such a remedy prior to Bivens.5 By contrast, it is obvious that when Congress has wished to authorize federal courts to grant damages relief, it has known how to do so and has done so expressly. For example, in 42 U.S.C. § 1983 Congress explicitly provided for federal courts to award damages against state officials who violate an individual's constitutional rights.6 With respect to federal officials, however, it has never provided for these types of damages awards.7 Rather, it chose a different route in 1974 by eliminating the immunity of federal officials under the FTCA. See n. 2, supra. 55 Congress has also created numerous express causes of actions for damages in other areas. See, e. g., Fair Labor Standards Act, 29 U.S.C. § 216(b); Civil Rights Act of 1968, 42 U.S.C. § 3612(c); Federal Employers' Liability Act, 45 U.S.C. §§ 51-60. While the injuries for which such damages have been authorized may seem less important than violations of constitutional rights by federal officials, Congress has nonetheless said that it wants federal courts to hear the former, and has not similarly spoken with respect to the latter. 56 In my view, absent a clear indication from Congress, federal courts lack the authority to grant damages relief for constitutional violations. Although Congress surely may direct federal courts to grant relief in Bivens -type actions, it is enough that it has not done so. As stated by this Court in Wheeldin v. Wheeler, 373 U.S., at 652, 83 S.Ct., at 1445-1446, which declined to create an implied cause of action for federal officials' abuse of their statutory authority to issue subpoenas: 57 "Over the years Congress has considered the problem of state civil and criminal actions against federal officials many times. . . . But no general statute making federal officers liable for acts committed 'under color,' but in violation, of their federal authority has been passed. . . . That state law governs the cause of action alleged is shown by the fact that removal is possible in a nondiversity case such as this one only because the interpretation of a federal defense makes the case one 'arising under' the Constitution or laws of the United States. . . . [I]t is not for us to fill any hiatus Congress has left in this area." 58 Because Congress also has never provided for a Bivens -type damages award, I think the appropriate course is for federal courts to dismiss such actions for failure to state a claim upon which relief can be granted. Congress did not even grant to federal courts a general jurisdiction to entertain cases arising under the Constitution until 1875. Act of Mar. 3, 1875, § 1, 18 Stat. 470. It thus would seem that the most reasonable explanation for Congress' failure explicitly to provide for damages in Bivens actions is that Congress intended to leave this responsibility to state courts in the application of their common law, or to put it conversely to preclude federal courts from granting such relief. 59 The authority of federal courts "to adjust their remedies so as to grant the necessary relief," Bell v. Hood, 327 U.S., at 684, 66 S.Ct., at 777; Bivens, 403 U.S., at 392, 91 S.Ct., at 2002; Davis v. Passman, 442 U.S., at 245, 99 S.Ct., at 2277, does not suggest a contrary conclusion. While federal courts have historically had broad authority to fashion equitable remedies,8 it does not follow that absent congressional authorization they may also grant damages awards for constitutional violations that would traditionally be regarded as remedies at law. The broad power of federal courts to grant equitable relief for constitutional violations has long been established. As this Court observed in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971): 60 "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. 61 " 'The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.' Hecht Co. v. Bowles, 321 U.S. 321, 329-330, [64 S.Ct. 587, 591-92, 88 L.Ed. 754] (1944), cited in Brown [v. Board of Education, 349 U.S. 294, 300, [75 S.Ct. 753, 756, 99 L.Ed. 1083] (1955)]." 62 Thus, for example, in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it was held that a federal court may enjoin a state officer from enforcing penalties and remedies provided by an unconstitutional statute. See also, e. g., Osborn v. United States Bank, 9 Wheat. 738, 838-846, 859, 6 L.Ed. 204 (1824). 63 No similar authority of federal courts to award damages for violations of constitutional rights had ever been recognized prior to Bivens.9 And so statutory grant by Congress supports the exercise of such authority by federal courts. The Rules of Decision Act, for example, provides that "[t]he laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." 28 U.S.C. § 1652. And the All Writs Act authorizes this Court and lower federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651. Neither these statutes, nor 28 U.S.C. § 1331, authorizes federal courts to create a body of common-law damages remedies for constitutional violations or any other legal wrong. And as previously discussed, federal courts do not have the authority to act as general courts of common law absent authorization by Congress. 64 In light of the absence of any congressional authorization or historical support, I do not think the equitable authority of federal courts to grant "the necessary relief" provides a foundation for inferring a common-law of damages remedies from various constitutional provisions. I believe my conclusion here is further supported by an examination of the difficulties that arise in attempting to delimit the contours of the damages remedy that the Court has held should be available when an individual's constitutional rights are violated. II 65 The Court concludes, as noted above, that respondent may recover damages as a result of an inferred remedy under the Eighth Amendment because "nothing in the Federal Tort Claims Act (FTCA) or its legislative history . . . show[s] that Congress meant to pre-empt a Bivens remedy or to create an equally effective remedy for constitutional violations," ante, at 19, nor are there any " 'special factors counselling [judicial] hesitation.' " Ante, at 18. After observing that Congress did not explicitly state in the FTCA or its legislative history that the FTCA was intended to provide such a remedy, the Court points to "[f]our additional factors" that suggest a "Bivens remedy is more effective than the FTCA remedy" in attempting to ascertain congressional intention here. Ante, at 20. The first is that the Bivens remedy is recoverable against individuals whereas the FTCA remedy is against the United States, and thus the Bivens remedy more effectively serves the deterrent purpose articulated in Bivens. 66 The Court not only fails to explain why the Bivens remedy is effective in the promotion of deterrence, but also does not provide any reason for believing that other sanctions on federal employees—such as a threat of deductions in pay, reprimand, suspension, or firing—will be ineffective in promoting the desired level of deterrence, or that Congress did not consider the marginal increase in deterrence here to be outweighed by other considerations. See, e. g., Bell, Proposed Amendments to the Federal Tort Claims Act, 16 Harv.J. on Leg. 1, 13 (1979). And while it may be generally true that the extent to which a sanction is imposed directly on a wrongdoer will have an impact on the effectiveness of a deterrent remedy,10 there are also a number of other factors that must be taken into account—such as the amount of damages necessary to offset the benefits of the objectionable conduct, the risk that the wrongdoer might escape liability, the clarity with which the objectionable conduct is defined, and the perceptions of the individual who is a potential wrongdoer. In a Bivens action, however, there is no relationship whatsoever between the damages awarded and the benefits from infringing the individual's rights because the damages award focuses solely on the loss to the plaintiff. The damages in such an action do not take into account the risk that the wrongdoer will escape liability altogether. In addition, it is often not clear what conduct violates the Constitution, see, e. g., Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980);11California v. Minjares, 443 U.S. 916, 917-919, 100 S.Ct. 9, 10-11, 61 L.Ed.2d 892 (1979) (REHNQUIST, J., dissenting from denial of stay). In many cases the uncertainty as to what constitutes a constitutional violation will impair the deterrent impact of a Bivens remedy.12 Finally, the perceptions of the potential wrongdoer as to the above considerations may also detract from the deterrent effect of a Bivens action. The Court makes no attempt to assess these factors or to examine them in relation to an FTCA action. In my view, its assertion that the Bivens remedy is a more effective deterrent than the FTCA remedy, and that this is a reason for concluding that Congress intendedBivens actions to exist concurrently with FTCA actions, remains an unsupported assertion.13 67 In addition, there are important policy considerations at stake here that Congress may decide outweigh the interest in deterrence promoted by personal liability of federal officials. Indeed, the fear of personal liability may "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949) (L. Hand). And, as one commentator has observed: "Despite the small odds an employee will actually be held liable in a civil suit, morale within the federal services has suffered as employees have been dragged through drawn-out lawsuits, many of which are frivolous." Bell, 16 Harv.J. on Leg., supra at 6. 68 The Court next argues that Congress did not intend that FTCA to displace the Bivens remedy because it did not provide for punitive damages in the FTCA. As the Court observes, we have not "expressly address[ed] and decid[ed] the question" whether punitive damages may be awarded in a Bivens suit. Ante, p. 21-22. And despite the Court's assertion to the contrary, we have also not done so with respect to § 1983 actions. In Carey v. Piphus, 435 U.S. 247, 257, n. 11, 98 S.Ct. 1042, 1049, n. 11, 55 L.Ed.2d 252 (1978), this Court explicitly stated that "we imply no approval or disapproval of any of [the] cases" that have awarded punitive damages in § 1983 actions. Because this Court has never reached the question whether punitive damages may be awarded in either a Bivens or § 1983 action, I think serious doubts arise as to the Court's claim that an FTCA action is not as effective as a Bivens action because the FTCA does not permit punitive damages awards. Indeed, this Court in Carey also stated that "[t]o the extent that Congress intended that [damages] awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages." 435 U.S., at 256-257, 98 S.Ct., at 1048-1049. 69 Even if punitive damages were appropriate in a Bivens action, such damages are typically determined by reference to factors such as the character of the wrong, the amount necessary to "punish" the defendant, etc., and the jury has a great deal of discretion in deciding both whether such damages should be awarded and the amount of the punitive award. See, e. g., C. McCormick, Law of Damages § 85 (1935). The determination whether this or some other remedy—such as a fixed fine, a threat of being reprimanded, suspended, or fired, or simply compensatory damages—provides the desired level of deterrence is one for Congress. This Court should defer to Congress even when Congress has not explicitly stated that its remedy is a substitute for a Bivens action. 70 The third factor relied on by the Court to support its conclusion that Congress did not intend the FTCA to serve as a substitute for a Bivens action is that a plaintiff cannot opt for a jury in a FTCA action while he can in a Bivens suit. The Court, however, offers no reason why a judge is preferable to a jury, or vice versa, in this context. Rather, the Court merely notes that petitioners cannot explain why plaintiffs should not retain the choice between a judge and jury. Ante, at 23, and n. 9. I do not think the fact that Congress failed to specify that the FTCA was a substitute for a Bivens action supports the conclusion that Congress viewed the plaintiff's ability to choose between a judge and a jury as a reason for retaining a Bivens action in addition to an action under the FTCA. 71 Finally, I do not think it is obvious, as the Court states, that liability of federal officials for violations of constitutional rights should be governed by uniform rules absent an explicit statement by Congress indicating a contrary intention. The importance of federalism in our constitutional system has been recognized both by this Court, see, e. g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and by Congress, see, e. g., 42 U.S.C. § 1988, and in accommodating the values of federalism with other constitutional principles and congressional statutes, this Court has often deferred to state rules. See, e. g., Rob- ertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). As observed by Mr. Justice POWELL, "federal courts routinely refer to state law to fill the procedural gaps in national remedial remedial schemes." Ante, at 29 (opinion concurring in judgment).14 Indeed, the Rules of Decision Act would seem ordinarily to require it. 28 U.S.C. § 1652. 72 Once we get past the level of a high-school civics text, it is simply not self-evident to merely assert that here we have a federal cause of action for violations of federal rights by federal officials, and thus the question whether reference to state procedure is appropriate "admits of only a negative answer in the absence of a contrary congressional resolution." Ante, p. 23. The Court articulates no solid basis for concluding that there is any interest in uniformity that should generally be viewed as significant. Although the Court identifies "deterrence" as an objective of a Bivens action, a § 1983 action, which is also a creation of federal law, has been recognized by this Court as having a similar objective in the promotion of deterrence. See, e. g., Carey v. Piphus, supra, at 257, 98 S.Ct., at 1049; Robertson v. Wegmann, 436 U.S., at 592, 98 S.Ct., at 1996; Imbler v. Pachtman, supra, at 442, 96 S.Ct., at 1000 (WHITE, J., concurring in judgment).15 And with respect to such actions state procedural rules are generally controlling, see,e. g., Robertson v. Wegmann, supra. As observed in Robertson, supra, at 593, 98 S.Ct., at 1996-1997: 73 "It is true that § 1983 provides 'a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation.' Mitchum v. Foster, supra, [407 U.S. 225,] 239, [92 S.Ct. 2151, 2160, 32 L.Ed.2d 705]. That a federal remedy should be available, however, does not mean that a § 1983 plaintiff (or his representative) must be allowed to continue an action in disregard of the state law to which § 1988 refers us. A state statute cannot be considered 'inconsistent' with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the § 1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant."16 74 I think the congressional determination to defer to state procedural rules in the § 1983 context indicates the weak foundation upon which the Court's analysis here rests.17 75 In my view, the fact that Congress has created a tort remedy against federal officials at all, as it has done here under the FTCA, is dispositive. The policy questions at issue in the creation of any tort remedies, constitutional or otherwise, involve judgments as to diverse factors that are more appropriately made by the legislature than by this Court in an attempt to fashion a constitutional common law. This Court stated in TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2301, 57 L.Ed.2d 117 (1978): 76 "Our system of government is, after all, a tripartite one, with each Branch having certain defined functions delegated to it by the Constitution. While '[i]t is emphatically the province and duty of the judicial department to say what the law is,' Marbury v. Madison, 1 Cranch 137, 177 [2 L.Ed. 60] (1803), it is equally—and emphatically—the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought." 77 Here Congress has provided no indication that it believes sound policy favors damages awards against federal officials for violations of constitutional rights. III 78 I think the Court acknowledges the legislative nature of the determinations involved here when it states that such a remedy may be defeated when "Congress has indicated that it intends the statutory remedy to replace, rather than to complement, the Bivens remedy." Ante, at 19, n. 5. Here Congress did not do so because in the Court's words: "In the absence of a contrary expression from Congress, § 2680(h) . . . contemplates that victims of the kind of intentional wrongdoing alleged in this complaint shall have an action under FTCA against the United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights." Ante, at 20. But under the Court's rationale if Congress had made clear that it intended the FTCA to displace judicially inferred remedies under the Constitution, this Court must defer to that legislative judgment.18 This principle was also recognized in Bivens, wherein the Court noted that Congress had given no indication that it viewed any other remedy to be as effective as the damages remedy inferred by the Court from the Fourth Amendment. 403 U.S., at 397, 91 S.Ct., at 2005. See also Davis v. Passman, 442 U.S., at 245, 246-247, 99 S.Ct., at 2277, 2278; Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978). 79 I agree with the Court that Congress is free to devise whatever remedy it sees fit to redress violations of constitutional rights sued upon in Art. III courts, and to have that remedy altogether displace any private civil damages remedies that this Court may devise. I disagree, however, that, unless "special factors" counsel hesitation, Congress must make some affirmative showing that it intends its action to provide such redress before this Court will deem Congress' action to be an adequate substitute for an inferred remedy.19 The requirement of such congressional action is a formal procedural device that not only serves little useful purpose, but also subverts the policymaking authority vested by the Constitution in the Legislative Branch. Its application in this case, through the Court's attempt to ascertain congressional intention by examining whether the FTCA or a Bivens action is "more effective," in my view demonstrates that the creation of constitutional damages remedies involves policy considerations that are more appropriately made by the Legislative rather than the Judicial Branch of our Government. IV 80 I think the Court's formalistic procedural approach to this problem is flawed for one additional reason. As noted above, the approach adopted by the Court in Bivens and reaffirmed today is one that permits Congress to displace this Court in fashioning a constitutional common law of its choosing merely by indicating that it intends to do so. Ante, at 19, n. 5. Otherwise, unless special factors counsel "hesitation," it will be presumed under the Court's analysis that Congress intended any remedy it creates to be enforced simultaneously by federal courts with a Bivens action. The Court provides no justification for this canon of divining legislative intention. Presumably when Congress creates and defines the limits of a cause of action, it has taken into account competing considerations and struck what it considers to be an appropriate balance among them. In my view it is wholly at odds with traditional principles for interpretation of legislative intention and with the constitutional notion of separation of powers to conclude that because Congress failed to indicate that it did not intend the cause of action and its limitations to be defined otherwise, it intended for this Court to exercise free rein in fashioning additional rules for recovery of damages under the guise of an inferred constitutional damages action. 81 For the foregoing reasons I dissent, and would reverse the judgment. 1 More specifically, respondent alleged that petitioners, being fully apprised of the gross inadequacy of medical facilities and staff at the Federal Correction Center in Terre Haute, Ind., and of the seriousness of Jones' chronic asthmatic condition, nonetheless kept him in that facility against the advice of doctors, failed to give him competent medical attention for some eight hours after he had an asthmatic attack, administered contra-indicated drugs which made his attack more severe, attempted to use a respirator known to be inoperative which further impeded his breathing, and delayed for too long a time his transfer to an outside hospital. The complaint further alleges that Jones' death resulted from these acts and omissions, that petitioners were deliberately indifferent to Jones' serious medical needs, and that their indifference was in part attributable to racial prejudice. 2 This question was presented in the petition for certiorari, but not in either the District Court or the Court of Appeals. However, respondent does not object to its decision by this Court. Though we do not normally decide issues not presented below, we are not precluded from doing so. E. g., Youakim v. Miller, 425 U.S. 231, 96 S.Ct. 1399, 47 L.Ed.2d 701 (1976). Here, the issue is squarely presented and fully briefed. It is an important, recurring issue and is properly raised in another petition for certiorari being held pending disposition of this case. See Loe v. Armistead, 582 F.2d 1291 (CA4 1978), cert. pending sub nom. Moffitt v. Loe, No. 78-1260. We conclude that the interests of judicial administration will be served by addressing the issue on its merits. 3 Petitioners do not contest the determination that the allegations satisfy the standards set out in Estelle. 4 The relevant Indiana law provides that a personal injury claim does not survive where the acts complained of caused the victim's death. Ind.Code § 34-1-1-1 (1976). Indiana does provide a wrongful-death cause of action for the personal representative of one whose death is caused by an alleged wrongful act or omission. Damages may "includ[e], but [are] not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings." But if the decedent is not survived by a spouse, dependent child, or dependent next of kin, then the recovery is limited to expenses incurred in connection with the death. Ind.Code § 34-1-1-2 (1976). The District Court read the complaint in this case as stating claims under both §§ 34-1-1-1 and 34-1-1-2. Accordingly, the court assumed that recovery on the claim was limited to expenses (all of which would be paid by the Federal Government) only because Jones died without a spouse or any dependents. The Court of Appeals read the complaint as stating only a survivorship claim on behalf of Jones under § 34-1-1-1. Thus it assumed that the claim would have abated even if Jones had left dependents or a spouse. 581 F.2d 669, 672, n. 4 (1978). Resolution of this conflict is irrelevant in light of our holding today. 5 To satisfy this test, petitioners need not show that Congress recited any specific "magic words." See the dissenting opinion of THE CHIEF JUSTICE, post, at 31, and n. 2. Instead, our inquiry at this step in the analysis is whether Congress has indicated that it intends the statutory remedy to replace, rather than to complement, the Bivens remedy. Where Congress decides to enact a statutory remedy which it views as fully adequate only in combination with the Bivens remedy, e. g., 28 U.S.C. § 2680(h), that congressional decision should be given effect by the courts. 6 Title 42 U.S.C. § 1983 serves similar purposes. See, e. g., Robertson v. Wegmann, 436 U.S. 584, 590-591, 98 S.Ct. 1991, 1995-96, 56 L.Ed.2d 554 (1978); Carey v. Piphus, 435 U.S. 247, 256, 98 S.Ct. 1042, 1048, 55 L.Ed.2d 252 (1978); Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972); Monroe v. Pape, 365 U.S. 167, 172-187, 81 S.Ct. 473, 476-84, 5 L.Ed.2d 492 (1961). 7 Indeed, underlying the qualified immunity which public officials enjoy for actions taken in good faith is the fear that exposure to personal liability would otherwise deter them from acting at all. See Butz v. Economou, 438 U.S. 478, 497, 98 S.Ct. 2894, 2906, 57 L.Ed.2d 895 (1978); Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). 8 Some doubt has been cast on the validity of the assumption that there exist adequate mechanisms for disciplining federal employees in such cases. See Testimony of Griffin B. Bell, Attorney General of the United States, Joint Hearing on Amendments to the Federal Tort Claims Act before the Subcommittee on Citizens and Shareholders Rights and Remedies and the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 95th Cong., 2d Sess., pt. 1, p. 6 (1978). 9 Moreover, after Carey punitive damages may be the only significant remedy available in some § 1983 actions where constitutional rights are maliciously violated but the victim cannot prove compensable injury. 10 Petitioners argue that the availability of punitive damages or a jury trial under Bivens is irrelevant because neither is a necessary element of a remedial scheme. But that argument completely misses the mark. The issue is not whether a Bivens cause of action or any one of its particular features is essential. Rather the inquiry is whether Congress has created what it views as an equally effective remedial scheme. Otherwise the two can exist side by side. Moreover, no one difference need independently render FTCA inadequate. It can fail to be equally effective on the cumulative basis of more than one difference. 11 Robertson fashioned its holding by reference to 42 U.S.C. § 1988, which requires that § 1983 actions be governed by "the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of [the] civil . . . cause is held, so far as the same is not inconsistent with the Constitution and statutes of the United States." Section 1988 does not in terms apply to Bivens actions, and there are cogent reasons not to apply it to such actions even by analogy. Bivens defendants are federal officials brought into federal court for violating the Federal Constitution. No state interests are implicated by applying purely federal law to them. While it makes some sense to allow aspects of § 1983 litigation to vary according to the laws of the States under whose authority § 1983 defendants work, federal officials have no similar claim to be bound only by the law of the State in which they happen to work. Bivens, 403 U.S., at 409, 91 S.Ct., at 2011 (Harlan, J., concurring in judgment). Moreover, these petitioners have the power to transfer prisoners to facilities in any one of several States which may have different rules governing survivorship or other aspects of the case, thereby controlling to some extent the law that would apply to their own wrongdoing. See Robertson, 436 U.S., at 592-593, and n. 10, 98 S.Ct., at 1996-97. Another aspect of the power to transfer prisoners freely within the federal prison system is that there is no reason to expect that any given prisoner will have any ties to the State in which he is incarcerated, and, therefore, the State will have little interest in having its law applied to that prisoner. Nevertheless, as to other survivorship questions that may arise in Bivens actions, it may be that the federal law should choose to incorporate state rules as a matter of convenience. We leave such questions for another day. 12 Otherwise, an official could know at the time he decided to act whether his intended victim's claim would survive. Cf. Auto Workers v. Hoosier Cardinal Corp. (whether statute of limitation will matter cannot be known at time of conduct). 1 The Federal Tort Claims Act is not a federal remedial scheme at all, but a waiver of sovereign immunity that permits an injured claimant to recover damages against the United States where a private person "would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674. Here, as in Bivens itself, a plaintiff denied his constitutional remedy would be remitted to the vagaries of state law. See 403 U.S., at 394-395, 91 S.Ct., at 2003-04. The FTCA gives the plaintiff even less than he would receive under state law in many cases, because the statute is hedged with protections for the United States. As the Court points out, the FTCA allows neither jury trial nor punitive damages. Ante, at 21-22. And recovery may be barred altogether if the claim arises from a "discretionary function" or "the execution of a statute or regulation, whether or not such statute or regulation be valid." 28 U.S.C. § 2680(a). 2 I do not suggest that courts enjoy the same degree of freedom to infer causes of action from statutes as from the Constitution. See Davis v. Passman, 442 U.S. 228, 241-242, 99 S.Ct. 2264, 2274-75, 60 L.Ed.2d 846 (1979). I do believe, however, that the Court today has overstepped the bounds of rational judicial decision-making in both contexts. 1 The Court pays lip-service to the notion that there must be no "special factors counselling hesitation in the absence of affirmative action by Congress." Ante, at 19. Its one-sentence discussion of the point, however, plainly shows that it is unlikely to hesitate unless Congress says that it must. See opinion of Mr. Justice POWELL, ante at 27. 2 In his concurrence in Bivens, Mr. Justice Harlan emphasized that judicial implication of a constitutional damages remedy was required because the Bill of Rights is aimed at "restraining the Government as an instrument of the popular will." 403 U.S., at 404, 91 S.Ct., at 2008. See generally J. Ely, Democracy and Distrust 73-104 (1980). Under the Harlan view, it would seem irrelevant whether Congress "meant to pre-empt a Bivens remedy." Ante, at 19. Rather the sole inquiry in every case—no matter what magic words Congress had said or failed to say—would be whether the alternative remedy gave satisfactory protection to constitutional interests. I note this point only to show how far the Court today strays from the principles underlying Bivens. 3 In response to this dissent, the Court's opinion tells us that it is merely "giv[ing] effect" to what Congress intended. See ante, at 19, n. 5. Presumably, this is a reference to the legislative history of the 1974 amendment to the FTCA, in which Congress, according to the Court, "made it crystal clear that . . . FTCA and Bivens [were] parallel, complementary causes of action." Ante, at 20. But as Mr. Justice REHNQUIST observes, the legislative history is far from clear. See post, at 33, n. 1. In any event, if the Court is correct in its reading of that history, then it is not really implying a cause of action under the Constitution; rather, it is simply construing a statute. If so, almost all of the Court's opinion is dicta. 1 As observed by Mr. Justice Brandeis: "This Court, while recognizing the soundness of the rule of stare decisis where appropriate, has not hesitated to overrule earlier decisions shown, upon fuller consideration, to be erroneous." Ashwander v. TVA, 297 U.S. 288, 352-353, 56 S.Ct. 466, 486, 80 L.Ed. 688 (1936) (concurring opinion). 2 As suggested by Mr. Justice POWELL, this analysis is properly viewed as dicta in light of other statements in the Court's opinion. Ante, at 26, 28 (opinion concurring in judgment). The Court's opinion entirely disposes of this case by stating that "when Congress amended FTCA in 1974 to create a cause of action against the United States for intentional torts committed by federal law enforcement officers, 28 U.S.C. § 2680(h), the congressional comments accompanying that amendment made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action . . . ." Ante, at 19-20 (emphasis added). In light of these comments the Court concludes: "In the absence of a contrary expression from Congress, § 2680(h) thus contemplates that victims of the kind of intentional wrongdoing alleged in this complaint shall have an action under FTCA against the United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights." Ante, p. 20. Although the Court finds these comments conclusive, in my view they do not purport to suggest that it is proper for courts to infer constitutional damages remedies in areas addressed by the FTCA. Rather, I think it more likely that they reflect Congress' understanding (albeit erroneous) that Bivens was a constitutionally required decision. If I am correct, the comments comprise merely an effort on the part of the Senate Committee to avoid what it perceived as a constitutional issue. In any event, the Report seems to be an uncertain basis for concluding that Congress supports the inference of a constitutional damages remedy here or in any other context. 3 Under the FTCA, if a federal agent's official conduct would render a private person liable in accordance with "the law of the place where the act or omission complained of occurred," 28 U.S.C. § 2674, recovery may be had against the United States except as provided in 28 U.S.C. § 2680. See also §§ 2672, 2675. And after Bivens, Congress amended the FTCA to allow direct recovery against the Government for certain intentional torts committed by federal officials. § 2680(h). As the Court notes, however, punitive damages may not be assessed against the United States, § 2674, nor may prejudgment interest be so assessed. 4 Indeed, on remand the District Court concluded that plaintiff had failed to state a federal claim upon which relief could be granted. Bell v. Hood, 71 F.Supp. 813 (SDCal 1947). In dismissing plaintiff's action the court observed that "[p]laintiffs are unable to point to any constitutional provision or federal statute giving one who has suffered an unreasonable search and seizure or false imprisonment by federal officers any federal right or cause of action to recover damages from those officers as individuals." Id., at 817. The District Court's opinion provided the foundation for many subsequent decision reaching the same result. See, e. g., United States v. Faneca, 332 F.2d 872, 875 (CA5 1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965); Johnston v. Earle, 245 F.2d 793, 796 (CA9 1957); Koch v. Zuieback, 194 F.Supp. 651, 656 (SDCal 1961), aff'd, 316 F.2d 1 (CA9 1963); Garfield v. Palmieri, 193 F.Supp. 582, 586 (EDNY 1960), aff'd per curiam, 290 F.2d 821 (CA2), cert. denied, 368 U.S. 827, 82 S.Ct. 46, 7 L.Ed.2d 30 (1961). 5 In his concurrence in Bivens, Mr. Justice Harlan relied heavily on decisions of this Court that have inferred private damages remedies from federal statutes. See, e. g., 403 U.S., at 402, 402-403, n. 4, 406, 407, 410-411, 91 S.Ct., at 2007, 2007-08, n. 4, 2009, 2010, 2011-12. Thus, he states: "The Borak case [J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964)] is an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of any express statutory authorization of a federal cause of action. . . . The exercise of judicial power involved in Borak simply cannot be justified in terms of statutory construction, . . . nor did the Borak Court purport to do so. See Borak, supra, [377 U.S.], at 432-434, [84 S.Ct., at 1559-1560.] The notion of 'implying' a remedy, therefore, as applied to cases like Borak, can only refer to a process whereby the federal judiciary exercises a choice among traditionally available judicial remedies according to reasons related to the substantive social policy embodied in an act of positive law." Id., at 402-403, n. 4, 91 S.Ct., at 2008, n. 4. In light of this Court's recent decisions in Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) and Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), it is clear that there is nothing left of the rationale of Borak. As observed in both those cases, it is obvious that "when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly." Touche Ross, supra, at 572, 99 S.Ct., at 2487; Transamerica, supra, at 21, 100 S.Ct., at 248. Because the statutes at issue in those cases did not expressly provide for such a remedy and there was no clear evidence of such a congressional intention in their legislative history, the Court, unlike in Borak, declined to imply a damages remedy from the statutes' broad language. Touche Ross and Transamerica thereby undermine the principal foundation of Mr. Justice Harlan's concurring opinion in Bivens. Thus, in spite of his cursory comment that for a Bivens plaintiff "it is damages or nothing," 403 U.S., at 410, 91 S.Ct., at 2011, I doubt that Mr. Justice Harlan would today reach the same conclusion that he did in Bivens in 1971, especially in light of his statement that "[m]y initial view of this case was that the Court of Appeals was correct in dismissing the complaint, but for reasons stated in this opinion I am now persuaded to the contrary." Id., at 387, 91 S.Ct., at 2005. 6 Title 42 U.S.C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 7 Indeed, in discussing the scope of authority conferred on federal courts by § 1983, Senator Thurman stated at the time § 1983 was adopted: "[This section's] whole effect is to give to the Federal Judiciary that which now does not belong to it—a jurisdiction that may be constitutionally conferred upon it, I grant, but that has never yet been conferred upon it. It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy." Cong.Globe, 42d Cong., 1st Sess., App. 216-217 (1871), quoted in Owen v. City of Independence, 445 U.S. 622, 636-637, n. 17, 100 S.Ct. 1398, 1408, n. 17, 63 L.Ed.2d 673 (1980). Since Senator Thurman was a staunch opponent of § 1983, the latter part of this statement may be viewed as not unlike the "parade of horribles" frequently marshaled against a pending measure and not the most reliable source of legislative history. But the first part of the statement quite certainly expressed the view entertained by students of federal jurisdiction until very recently. 8 Indeed, the principal cases relied on in Bell, Bivens, and Davis for the principle that federal courts have broad authority to fashion appropriate relief are equitable. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), for example, which is referred to in those decisions and relied on in Bell for the principle that "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief," 327 U.S., at 684, 66 S.Ct., at 777, involved equitable relief by way of mandamus or injunction. 9 The Just Compensation Clause of the Fifth Amendment is not an exception here because the express language of that Clause requires that "compensation" be paid for any governmental taking. 10 It must also be remembered that along with the greater deterrent effect resulting from liability imposed directly on the governmental wrongdoer, there is also strong potential for distortion of governmental decisionmaking as a result of the threat of liability. Thus, Mr. Justice Brennan in his opinion for the Court in Owen v. City of Independence, 445 U.S., at 655-656, 100 S.Ct., at 1417-1418, states: "At the heart of [the] justification for a qualified immunity for the individual official is the concern that the threat of personal monetary liability will introduce an unwarranted and unconscionable consideration into the decisionmaking process, thus paralyzing the governing official's decisiveness and distorting his judgment on matters of public policy. The inhibiting effect is significantly reduced, if not eliminated, however, when the threat of personal liability is removed." The fact that Congress in the FTCA has provided for a remedy against the United States, rather than against federal officials, thus does not suggest that Congress views a Bivens remedy as desirable because of its deterrent effect. Rather, it is at least equally, if not more, plausible that Congress viewed the approach in the FTCA to be preferable because of the potential impact on governmental decisionmaking that might result from the threat of personal liability. 11 For example, in Owen, which relies partially on a deterrence rationale, 445 U.S., at 651-652, 100 S.Ct., at 1416, the conduct causing the alleged injury to plaintiff had not been held to be a constitutional violation at the time it was committed. It is thus readily apparent that the imposition of damages in Owen had no deterrent impact whatsoever. 12 Even where the legal principles are not in flux, the constitutional standard may be sufficiently general that it is difficult to predict in advance whether a particular set of facts amounts to a constitutional violation. For example, as interpreted by this Court, the Due Process Clause of the Fourteenth Amendment may be violated by conduct that offends traditional notions of "fair play and substantial justice," Shaffer v. Heitner, 433 U.S. 186, 207, 212, 97 S.Ct. 2569, 2581, 2584, 53 L.Ed.2d 683 (1977), or that "shocks the conscience," Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). 13 Although the Court states that a Bivens remedy is recoverable against individuals, it does not state that the damages paid in a Bivens action actually come out of the federal employee's pocket. And even if they did, as explained above, it is not clear that the award would promote deterrence, or that any marginal increase in deterrence would outweigh other considerations that counsel against judicial creation of this type of remedy. 14 Like a Bivens action, a § 1983 action is a creation of federal law and an exclusively federal right. Congress in § 1988 nonetheless "quite clearly instructs [federal courts] to refer to state statutes" when federal law provides no rule of decision for actions brought under § 1983. Robertson v. Wegmann, 436 U.S., at 593, 98 S.Ct., at 1997. See also n. 10, supra. Although a § 1983 action is against state officers and a Bivens action is against federal officers, it does not follow that there is an obvious interest in application of uniform rules. Indeed, the controlling authority is to the contrary. See, e. g., Johnson v. Railway Express Agency, Inc., 421 U.S., at 462, 95 S.Ct., at 1721, and cases cited therein; infra, at 50. 15 Robertson reveals that, however one views the appropriateness of the Court's refusal to apply Indiana survivorship law in this case, the objective of deterrence does not mean that application of state law is inappropriate for filling procedural gaps in Bivens actions on the ground that the state rule will result in an unfavorable outcome for the plaintiff. 16 The Court states as one justification for its refusal to apply Indiana survivorship law that here the suit is against federal officials whereas § 1983 actions, which are subject to the requirements of § 1988, are against state officers. Ante, pp. 24-25, n. 11. Section 1988, however, applies not only to claims against state officers under § 1983, but also to suits under §§ 1981, 1982, and 1985, which do not require state action. And the Rules of Decision Act applies by its terms to federal causes of action, whether or not against federal officials. Thus, the asserted interest in a uniform rules of procedure in federal actions against federal officials, absent more, is unpersuasive and not justified in light of established practice. 17 Any alleged inconsistency with the policies of federal law here is highly speculative at best. In order to find even a marginal influence on behavior as a result of Indiana's survivorship provisions, one would have to assume not only that federal officials have both the desire and ability to select as victims only those persons who would not be survived by any close relatives, but also that (1) they are aware that if the victim dies survivorship law will preclude recovery, (2) they would intentionally kill the individual or permit him to die, rather than violate his constitutional rights to a lesser extent, in order to avoid liability under Bivens, and (3) a Bivens remedy will have a deterrent impact in these circumstances beyond that of ordinary criminal sanctions. In addition, one must include in the evaluation a consideration of competing policies that Congress may wish to promote. 18 Thus, although it does not appear that Congress explicitly stated that § 1983 is intended as the exclusive remedy for violations of constitutional rights by state officials, it would clearly be invasion of the legislative province for this Court to fashion a constitutional damages remedy against state officials that would exist concurrently with § 1983. As this Court observed with respect to its creation of a Bivens action, "[t]he presence or absence of congressional authorization for suits against federal officials is, of course, relevant to the question whether to infer a right of action for damages for a particular violation of the Constitution." Butz v. Economou, 438 U.S. 478, 503, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895 (1978). Here Congress' action in adopting 42 U.S.C. § 1983 demonstrates that Congress has exercised its judgment in balancing the relevant policies and in determining the nature and scope of the damages remedy against state officials who violate an individual's federal constitutional rights. In light of traditional notions of separation of powers, its judgment is conclusive. 19 As Mr. Justice POWELL states, the Court did not go this far even in Bivens. Ante, at 26-27 (opinion concurring in judgment).

78

446 U.S. 1 100 S.Ct. 1460 64 L.Ed.2d 1 CURTISS-WRIGHT CORPORATION, Petitioner,v.GENERAL ELECTRIC COMPANY. No. 79-105. Argued Jan. 14, 1980. Decided April 22, 1980. Syllabus Petitioner brought a diversity action in Federal District Court against respondent, seeking damages and reformation with regard to a certain series of contracts between the parties. Various claims were asserted, including a $19 million claim for amounts due on the contracts already performed. Respondent filed counterclaims. The facts as to most of the claims and counterclaims are in dispute, but the sole dispute as to petitioner's claim for the $19 million balance due concerns the application of a release clause in each of the contracts. The District Court granted summary judgment for petitioner for $19 million, plus prejudgment interest at the statutory rate of 6%, notwithstanding the release clause. Petitioner then moved for a certification of this judgment as a final judgment under Federal Rule of Civil Procedure 54(b), which provides that when more than one claim is presented in an action, whether as a claim or counterclaim, a district court may direct the entry of a final judgment as to one or more but fewer than all of the claims upon an express determination that there is no just reason for delay. The court granted the motion and directed entry of final judgment for petitioner after determining that there was "no just reason for delay" and finding, inter alia, that certification would not result in unnecessary appellate review; that the claims finally adjudicated were separate from any of the other claims or counterclaims; that the nature of the claims was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals; that petitioner would suffer severe financial loss from nonpayment of the $19 million judgment because current interest rates were higher than the statutory prejudgment rates; and that the solvency of the parties was not a significant factor since each appeared to be financially sound. Dismissing the case for want of an appealable order, the Court of Appeals held that the District Court had abused its discretion by granting the Rule 54(b) certification, since the possibility of a setoff required that the status quo be maintained unless petitioner could show harsh or unusual circumstances and since no such showing had been made. Held: The District Court did not abuse its discretion in granting petitioner's motion for certification under Rule 54(b). Pp. 7-13. (a) In deciding whether there are just reasons to delay an appeal of individual final judgments in a setting such as this, a district court must take into account the interests of sound judicial administration as well as the equities involved. Hence, it was proper for the District Court here to consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals. The mere presence of nonfrivolous counterclaims does not render a Rule 54(b) certification inappropriate. Pp. 8-9. (b) The Court of Appeals' holding that the status quo had to be maintained absent a showing by petitioner of harsh or unusual circumstances reflects a misinterpretation of the standard of review for Rule 54(b) certifications and a misperception of the appellate function in such cases. Pp. 9-10. (c) The proper standard against which a district court's exercise of discretion in granting a Rule 54(b) certification is to be judged is the interest of sound judicial administration. Under this standard, although the court of appeals must scrutinize the district court's evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals, once such juridical concerns have been met, the district court's discretionary judgment should be given substantial deference, and the court of appeals should disturb the district court's assessment of the equities only if it can say that the district judge's conclusion was clearly unreasonable. Pp. 10-11. (d) The question before the District Court here came down to which of the parties should get the benefit of the difference between the prejudgment and market rates of interest on the debts admittedly owing and adjudged to be due while unrelated claims were litigated. While the possibility of a setoff against the amount respondent owed petitioner was not an insignificant factor, the District Court took this into account when it determined that both litigants appeared to be financially sound, and that petitioner would be able to satisfy a judgment on the counterclaims if any were entered. Pp. 11-12. 3 Cir., 597 F.2d 35, vacated and remanded. Ralph N. Del Deo, Bernardsville, N.J., for petitioner. Isaac N. Groner, Washington, D.C., for respondent. Mr. CHIEF JUSTICE BURGER delivered the opinion of the Court. 1 Federal Rule of Civil Procedure 54(b) allows a district court dealing with multiple claims or multiple parties to direct the entry of final judgment as to fewer than all of the claims or parties; to do so, the court must make an express determination that there is no just reason for delay. We granted certiorari in order to examine the use of this procedural device. 444 U.S. 823, 100 S.Ct. 43, 62 L.Ed.2d 30 (1979). 2 * From 1968 to 1972, respondent General Electric Co. entered into a series of 21 contracts with petitioner Curtiss-Wright Corp. for the manufacture of components designed for use in nuclear powered naval vessels. These contracts had a total value of $215 million. 3 In 1976, Curtiss-Wright brought a diversity action in the United States District Court for the District of New Jersey, seeking damages and reformation with regard to the 21 contracts. The complaint asserted claims based on alleged fraud, misrepresentation, and breach of contract by General Electric. It also sought $19 million from General Electric on the outstanding balance due on the contracts already performed. 4 General Electric counterclaimed for $1.9 million in costs allegedly incurred as the result of "extraordinary efforts" provided to Curtiss-Wright during performance of the contracts which enabled Curtiss-Wright to avoid a contract default. General Electric also sought, by way of counterclaim, to recover $52 million by which Curtiss-Wright was allegedly unjustly enriched as a result of these "extraordinary efforts." 5 The facts underlying most of these claims and counterclaims are in dispute. As to Curtiss-Wright's claims for the $19 million balance due, however, the sole dispute concerns the application of a release clause contained in each of the 21 agreements, which states that "Seller . . . agree[s] as a condition precedent to final payment, that the Buyer and the Government . . . are released from all liabilities, obligations and claims arising under or by virtue of this order." App. 103a. When Curtiss-Wright moved for summary judgment on the balance due, General Electric contended that so long as Curtiss-Wright's other claims remained pending, this provision constituted a bar to recovery of the undisputed balance. 6 The District Court rejected this contention and granted summary judgment for Curtiss-Wright on this otherwise undisputed claim. Applying New York law by which the parties had agreed to be bound, the District Court held that Curtiss-Wright was entitled to payment of the balance due notwithstanding the release clause. The court also ruled that Curtiss-Wright was entitled to prejudgment interest at the New York statutory rate of 6% per annum. 7 Curtiss-Wright then moved for a certification of the District Court's orders as final judgments under Federal Rule of Civil Procedure 54(b),1 which provides: 8 "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." 9 The court expressly directed entry of final judgment for Curtiss-Wright and made the determination that there was "no just reason for delay" pursuant to Rule 54(b). 10 The District Court also provided a written statement of reasons supporting its decision to certify the judgment as final. It acknowledged that Rule 54(b) certification was not to be granted as a matter of course, and that this remedy should be reserved for the infrequent harsh case because of the overload in appellate courts which would otherwise result from appeals of an interlocutory nature. The essential inquiry was stated to be "whether, after balancing the competing factors, finality of judgment should be ordered to advance the interests of sound judicial administration and justice to the litigants." 11 The District Court then went on to identify the relevant factors in the case before it. It found that certification would not result in unnecessary appellate review; that the claims finally adjudicated were separate, distinct, and independent of any of the other claims or counterclaims involved; that review of these adjudicated claims would not be mooted by any future developments in the case; and that the nature of the claims was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals. 12 Turning to considerations of justice to the litigants, the District Court found that Curtiss-Wright would suffer severe daily financial loss from nonpayment of the $19 million judgment because current interest rates were higher than the statutory prejudgment rate, a situation compounded by the large amount of money involved. The court observed that the complex nature of the remaining claims could, without certification, mean a delay that "would span many months, if not years." 13 The court found that solvency of the parties was not a significant factor, since each appeared to be financially sound. Although the presence of General Electric's counterclaims and the consequent possibility of a setoff recovery were factors which weighed against certification, the court, in balancing these factors, determined that they were outweighed by the other factors in the case. Accordingly, it granted Rule 54(b) certification. It also granted General Electric's motion for a stay without bond pending appeal. 14 A divided panel of the United States Court of Appeals for the Third Circuit held that the case was controlled by its decision in Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (1975), where the court had stated: 15 "In the absence of unusual or harsh circumstances, we believe that the presence of a counterclaim, which could result in a set-off against any amounts due and owing to the plaintiff, weighs heavily against the grant of 54(b) certification." Id., at 366 (footnote omitted). 16 In Allis-Chalmers, the court defined unusual or harsh circumstances as those factors "involving considerations of solvency, economic duress, etc." Id., at 366, n. 14. 17 In the Third Circuit's view, the question was which of the parties should have the benefit of the amount of the balance due pending final resolution of the litigation. The court held that Allis-Chalmers dictated "that the matter remain in status quo when non-frivolous counterclaims are pending, and in the absence of unusual or harsh circumstances." 597 F.2d 35, 36 (1979) (per curiam ). The Court of Appeals acknowledged that Curtiss-Wright's inability to have use of the money from the judgment might seem harsh, but noted that the same could be said for General Electric if it were forced to pay Curtiss-Wright now but later prevailed on its counterclaims. Ibid. 18 The Court of Appeals concluded that the District Court had abused its discretion by granting Rule 54(b) certification in this situation and dismissed the case for want of an appealable order; it also directed the District Court to vacate its Rule 54(b) determination of finality. Curtiss-Wright's petition for rehearing and suggestion for rehearing en banc were denied. 599 F.2d 1259 (1979). Four judges dissented from that denial, observing that the case was in conflict with United Bank of Pueblo v. Hartford Accident & Indemnity Co., 529 F.2d 490 (CA10 1976). We reverse. II 19 Nearly a quarter of a century ago, in Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956), this Court outlined the steps to be followed in making determinations under Rule 54(b). A district court must first determine that it is dealing with a "final judgment." It must be a "judgment" in the sense that it is a decision upon a cognizable claim for relief, and it must be "final" in the sense that it is "an ultimate disposition of an individual claim entered in the course of a multiple claims action." 351 U.S., at 436, 76 S.Ct., at 900. 20 Once having found finality, the district court must go on to determine whether there is any just reason for delay. Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims. The function of the district court under the Rule is to act as a "dispatcher." Id., at 435, 76 S.Ct. at 899. It is left to the sound judicial discretion of the district court to determine the "appropriate time" when each final decision in a multiple claims action is ready for appeal. Ibid. This discretion is to be exercised "in the interest of sound judicial administration." Id., at 437, 76 S.Ct., at 900. 21 Thus, in deciding whether there are no just reasons to delay the appeal of individual final judgments in setting such as this, a district court must take into account judicial administrative interests as well as the equities involved. Consideration of the former is necessary to assure that application of the Rule effectively "preserves the historic federal policy against piecemeal appeals." Id., at 438, 76 S.Ct. at 901. It was therefore proper for the District Judge here to consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.2 22 Here the District Judge saw no sound reason to delay appellate resolution of the undisputed claims already adjudicated. The contrary conclusion of the Court of Appeals was strongly influenced by the existence of nonfrivolous counterclaims. The mere presence of such claims, however, does not render a Rule 54(b) certification inappropriate. If it did, Rule 54(b) would lose much of its utility. In Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956), this Court explained that counterclaims, whether compulsory or permissive, present no special problems for Rule 54(b) determinations; counterclaims are not to be evaluated differently from other claims. 351 U.S., at 452, 76 S.Ct., at 908. Like other claims, their significance for Rule 54(b) purposes turns on their interrelationship with the claims on which certification is sought. Here, the District Judge determined that General Electric's counterclaims were severable from the claims which had been determined in terms of both the factual and the legal issues involved. The Court of Appeals did not conclude otherwise. 23 What the Court of Appeals found objectionable about the District Judge's exercise of discretion was the assessment of the equities involved. The Court of Appeals concluded that the possibility of a setoff required that the status quo be maintained unless petitioner could show harsh or unusual circumstances; it held that such a showing had not been made in the District Court. 24 This holding reflects a misinterpretation of the standard of review for Rule 54(b) certifications and a misperception of the appellate function in such cases. The Court of Appeals relied on a statement of the Advisory Committee on the Rules of Civil Procedure, and its error derives from reading a description in the commentary as a standard of construction. When Rule 54(b) was amended in 1946, the Notes of the Advisory Committee which accompanied the suggested amendment indicated that the entire lawsuit was generally the appropriate unit for appellate review, "and that this rule needed only the exercise of a discretionary power to afford a remedy in the infrequent harsh case to provide a simple, definite, workable rule." 28 U.S.C.App., p. 484; 5 F.R.D. 433, 473 (1946). However accurate it may be as a description of cases qualifying for Rule 54(b) treatment, the phrase "infrequent harsh case" in isolation is neither workable nor entirely reliable as a benchmark for appellate review. There is no indication it was ever intended by the drafters to function as such. 25 In Sears, the Court stated that the decision to certify was with good reason left to the sound judicial discretion of the district court. At the same time, the Court noted that "[w]ith equally good reason, any abuse of that discretion remains reviewable by the Court of Appeals." 351 U.S., at 437, 76 S.Ct., at 901 (emphasis added). The Court indicated that the standard against which a district court's exercise of discretion is to be judged is the "interest of sound judicial administration." Ibid., at 437, 76 S.Ct. at 900. Admittedly this presents issues not always easily resolved, but the proper role of the court of appeals is not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are juridically sound and supported by the record. 26 There are thus two aspects to the proper function of a reviewing court in Rule 54(b) cases. The court of appeals must, of course, scrutinize the district court's evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units. But once such juridical concerns have been met, the discretionary judgment of the district court should be given substantial deference, for that court is "the one most likely to be familiar with the case and with any justifiable reasons for delay." Sears, supra, at 437, 76 S.Ct. at 901. The reviewing court should disturb the trial court's assessment of the equities only if it can say that the judge's conclusion was clearly unreasonable. 27 Plainly, sound judicial administration does not require that Rule 54(b) requests be granted routinely. That is implicit in commending them to the sound discretion of a district court. Because this discretion "is, with good reason, vested by the rule primarily" in the district courts, Sears, supra, at 437, 76 S.Ct. at 900-901, and because the number of possible situations is large, we are reluctant either to fix or sanction narrow guidelines for the district courts to follow. We are satisfied, however, that on the record here the District Court's assessment of the equities was reasonable. 28 One of the equities which the District Judge considered was the difference between the statutory and market rates of interest. Respondent correctly points out that adjustment of the statutory prejudgment interest rate is a matter within the province of the legislature, but that fact does not make the existing differential irrelevant for Rule 54(b) purposes. If the judgment is otherwise certifiable, the fact that a litigant who has successfully reduced his claim to judgment stands to lose money because of the difference in interest rates is surely not a "just reason for delay." 29 The difference between the prejudgment and market interest rates was not the only factor considered by the District Court. The court also noted that the debts in issue were liquidated and large, and that absent Rule 54(b) certification they would not be paid for "many months, if not years" because the rest of the litigation would be expected to continue for that period of time. The District Judge had noted earlier in his opinion on the merits of the release clause issue that respondent General Electric contested neither the amount of the debt nor the fact that it must eventually be paid. App. 164a-172a. The only contest was over the effect of the release clause on the timing of the payment, an isolated and strictly legal issue on which summary judgment had been entered against respondent. 30 The question before the District Court thus came down to which of the parties should get the benefit of the difference between the prejudgment and market rates of interest on debts admittedly owing and adjudged to be due while unrelated claims were litigated. The central factor weighing in favor of General Electric was that its pending counterclaims created the possibility of a setoff against the amount it owed petitioner. This possibility was surely not an insignificant factor, especially since the counterclaims had survived a motion to dismiss for failure to state a claim. Id., at 173a-174a. But the District Court took this into account when it determined that both litigants appeared to be in financially sound condition, and that Curtiss-Wright would be able to satisfy a judgment on the counterclaims should any be entered. 31 The Court of Appeals concluded that this was not enough, and suggested that the presence of such factors as economic duress and insolvency would be necessary to qualify the judgment for Rule 54(b) certification. 597 F.2d at 36. But if Curtiss-Wright were under a threat of insolvency, that factor alone would weigh against qualifying; that very threat would cast doubt upon Curtiss-Wright's capacity to produce all or part of the $19 million should General Electric prevail on some of its counterclaims. Such a showing would thus in fact be self-defeating. 32 Nor is General Electric's solvency a dispositive factor; if its financial position were such that a delay in entry of judgment on Curtiss-Wright's claims would impair Curtiss-Wright's ability to collect on the judgment, that would weigh in favor of certification. But the fact that General Electric is capable of paying either now or later is not a "just reason for delay." At most, as the District Court found, the fact that neither party is or will become insolvent renders that factor neutral in a proper weighing of the equities involved. 33 The question in cases such as this is likely to be close, but the task of weighing and balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case. As we have noted, that assessment merits substantial deference on review. Here, the District Court's assessment of the equities between the parties was based on an intimate knowledge of the case and is a reasonable one. The District Court having found no other reason justifying delay, we conclude that it did not abuse its discretion in granting petitioner's motion for certification under Rule 54(b).3 34 Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion. 35 It is so ordered. 1 This was the second motion by Curtiss-Wright for Rule 54(b) certification. An earlier motion was denied by the District Court because at that time the matter of prejudgment interest had not yet been resolved. 2 We do not suggest that the presence of one of these factors would necessarily mean that Rule 54(b) certification would be improper. It would, however, require the district court to find a sufficiently important reason for nonetheless granting certification. For example, if the district court concluded that there was a possibility that an appellate court would have to face the same issues on a subsequent appeal, this might perhaps be offset by a finding that an appellate resolution of the certified claims would facilitate a settlement of the remainder of the claims. See Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 450, n.5, 76 S.Ct. 904, 907, n.5, 100 L.Ed. 1311 (1956). 3 We note that Federal Rule of Civil Procedure 62(h) allows a court certifying a judgment under Rule 54(b) to stay its enforcement until the entering of a subsequent judgment or judgments. Rule 62(h) also states that the court "may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered." Under this Rule, we assume it would be within the power of the District Court to protect all parties by having the losing party deposit the amount of the judgment with the court, directing the Clerk to purchase high yield government obligations and to hold them pending the outcome of the case. In this way, valid considerations of economic duress and solvency, which do not affect the juridical considerations involved in a Rule 54(b) determination, can be provided for without preventing Rule 54(b) certification. In the instant case, after certifying the judgment as final under Rule 54(b), the District Court granted respondent's motion for a stay of judgment without bond, but only pending resolution of the appeal.

89

64 L.Ed.2d 107 100 S.Ct. 1540 446 U.S. 142 Paul J. WENGLER, Appellant,v.DRUGGISTS MUTUAL INSURANCE COMPANY et al. No. 79-381. Argued Feb. 25, 1980. Decided April 22, 1980. Syllabus Held : The provision of the Missouri workers' compensation laws denying a widower benefits on his wife's work-related death unless he either is mentally or physically incapacitated or proves dependence on his wife's earnings, but granting a widow death benefits without her having to prove dependence on her husband's earnings, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 147-152. (a) The statute indisputably mandates gender-based discrimination and discriminates against both men and women. It discriminates against a woman since, in the case of her death, benefits are payable to her spouse only if he meets the incapacity or dependency tests, whereas death benefits are automatically paid to a widow because dependency on her husband is conclusively presumed, a female wage earner thus being provided with less protection for her spouse on her work-related death than is provided for the widow of a deceased male wage earner. And the statute discriminates against a man who survives his wife's dying in a work-related accident because to receive benefits he, in contrast to a widow, must prove incapacity or dependency. Pp. 147-149. (b) To be justified, gender-based discriminations must serve important governmental objectives and the discriminatory means employed must be substantially related to the achievement of those objectives. Here, the claimed justification for not treating men and women alike—that women are generally dependent on male wage earners and that it is more efficient to presume dependency in the case of women than to engage in case-by-case determination, whereas individualized inquiries in the few cases in which men might be dependent are not prohibitively costly—is unsubstantiated and thus cannot save the gender-based discrimination in question. Pp. 150-152. 583 S.W.2d 162, reversed and remanded. John W. Reid, II, Fredericktown, Md., for appellant. Ralph C. Kleinschmidt, St. Louis, Mo., for appellees. Mr. Justice WHITE delivered the opinion of the Court. 1 This case challenges under the Equal Protection Clause of the Fourteenth Amendment a provision of the Missouri workers' compensation laws, Mo.Rev.Stat. § 287.240 (Supp.1979), which is claimed to involve an invalid gender-based discrimination. 2 * The facts are not in dispute. On February 11, 1977, Ruth Wengler, wife of appellant Paul J. Wengler, died in a work-related accident in the parking lot of her employer, appellee Dicus Prescription Drugs, Inc. Appellant filed a claim for death benefits under Mo.Rev.Stat. § 287.240 (Supp.1979),1 under which a widower is not entitled to death benefits unless he either is mentally or physically incapacitated from wage earning or proves actual dependence on his wife's earnings. In contrast, a widow qualifies for death benefits without having to prove actual dependence on her husband's earnings.2 3 Appellant stipulated that he was neither incapacitated nor dependent on his wife's earnings, but argued that, owing to its disparate treatment of similarly situated widows and widowers, § 287.240 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The claim was administratively denied, but the Circuit Court of Madison County reversed, holding that § 287.240 violated the Equal Protection Clause because the statutory restriction on a widower's recovery of death benefits did not also apply to a surviving wife. Dicus and its insurer, appellee Druggists Mutual Insurance Co., were ordered to pay death benefits to appellant in the appropriate amount. App. to Juris. Statement A22-A25. 4 The Missouri Supreme Court, distinguishing certain cases in this Court, reversed the Circuit Court's decision. The equal protection challenge to § 287.240 failed because "the substantive difference in the economic standing of working men and women justifies the advantage that [§ 287.240] administratively gives to a widow." 583 S.W.2d 162, 168 (1979). 5 Because the decision of the Supreme Court of Missouri arguably conflicted with our precedents, we noted probable jurisdiction. 444 U.S. 924, 100 S.Ct. 261, 62 L.Ed.2d 180 (1979). We now reverse.3 II 6 The Missouri law indisputably mandates gender-based discrimination. Although the Missouri Supreme Court was of the view that the law favored, rather than disfavored, women, it is apparent that the statute discriminates against both men and women. The provision discriminates against a woman covered by the Missouri workers' compensation system since, in the case of her death, benefits are payable to her spouse only if he is mentally or physically incapacitated or was to some extent dependent upon her. Under these tests, Mrs. Wengler's spouse was entitled to no benefits. If Mr. Wengler had died, however, Mrs. Wengler would have been conclusively presumed to be dependent and would have been paid the statutory amount for life or until she remarried even though she may not in fact have been dependent on Mr. Wengler. The benefits, therefore, that the working woman can expect to be paid to her spouse in the case of her work-related death are less than those payable to the spouse of the deceased male wage earner. 7 It is this kind of discrimination against working women that our cases have identified and in the circumstances found unjustified. At issue in Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), was a provision in the Social Security Act, 42 U.S.C. § 402(g), that granted survivors' benefits based on the earnings of a deceased husband and father covered by the Act both to his widow and to the couple's minor children in her care, but that granted benefits based on the earnings of a covered deceased wife and mother only to the minor children and not to the widower. In concluding that the provision violated the equal protection component of the Fifth Amendment, we noted that, "[o]bviously, the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support." Weinberger v. Wiesenfeld, supra, at 645, 95 S.Ct., at 1231-1232, citing Kahn v. Shevin, 416 U.S. 351, 354, n. 7, 94 S.Ct. 1734, 1737 n. 7, 40 L.Ed.2d 189 (1974).4 But such a generalization could not itself justify the gender-based distinction found in the Act, for § 402(g) "clearly operate[d] . . . to deprive women of protection for their families which men receive as a result of their employment." 420 U.S., at 645, 95 S.Ct., at 1232. The offensive assumption was "that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support." Id., at 643, 95 S.Ct., at 1231 (footnote omitted). 8 Similarly, in Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), we dealt with a Social Security Act provision providing survivors' benefits to a widow regardless of dependency, but providing the same benefits to a widower only if he had been receiving at least half of his support from his deceased wife. 42 U.S.C. § 402(f)(1)(D). Mr. Justice BRENNAN's plurality opinion pointed out that, under the challenged section, "female insureds received less protection for their spouses solely because of their sex" and that, as in Wiesenfeld, the provision disadvantaged women as compared to similarly situated men by providing the female wage earner with less protection for her family than it provided the family of the male wage earner even though the family needs might be identical. Califano v. Goldfarb, supra, at 208, 97 S.Ct., at 1207. The plurality opinion, in the circumstances there, found the discrimination violative of the Fifth Amendment's equal protection guarantee. 9 Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), involved a similar discrimination. There, a serviceman could claim his wife as a dependent without regard to whether she was in fact dependent upon him and so obtain increased quarters allowances and medical and dental benefits. A servicewoman, on the other hand, could not claim her husband as a dependent for these purposes unless he was in fact dependent upon her for over one-half of his support. This discrimination, devaluing the service of the woman as compared with that of the man, was invalidated. 10 The Missouri law, as the Missouri courts recognized, also discriminates against men who survive their employed wives' dying in work-related accidents. To receive benefits, the surviving male spouse must prove his incapacity or dependency. The widow of a deceased wage earner, in contrast, is presumed dependent and is guaranteed a weekly benefit for life or until remarriage. It was this discrimination against the male survivor as compared with a similarly situated female that Mr. Justice STEVENS identified in Califano v. Goldfarb, supra, as resulting in a denial of equal protection.5 430 U.S., at 217-224, 97 S.Ct., at 1035 (opinion of STEVENS, J.). III 11 However the discrimination is described in this case, our precedents require that gender-based discriminations must serve important governmental objectives and that the discriminatory means employed must be substantially related to the achievement of those objectives. Califano v. Westcott, 443 U.S. 76, 85, 99 S.Ct. 2655, 2661, 61 L.Ed.2d 382 (1979); Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979); Califano v. Webster, 430 U.S. 313, 316-317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976). 12 Acknowledging that the discrimination involved here must satisfy the Craig v. Boren standard, 583 S.W.2d, at 164-165, the Missouri Supreme Court stated that "the purpose of the [law] was to favor widows, not to disfavor them" and that when the law was passed in 1925 the legislature no doubt believed that "a widow was more in need of prompt payment of death benefits upon her husband's death without drawn-out proceedings to determine the amount of dependency than was a widower." Id., at 168. Hence, the conclusive presumption of dependency satisfied "a perceived need widows generally had, which need was not common to men whose wives might be killed while working." Ibid. The survivor's "hardship was seen by the legislatur[e] as more immediate and pronounced on women than on men," and "the substantive difference in the economic standing of working men and women justifies the advantage that [the law] administratively gives to a widow." Ibid. 13 Providing for needy spouses is surely an important governmental objective, Orr v. Orr, supra, at 280, 99 S.Ct., at 1112, and the Missouri statute effects that goal by paying benefits to all surviving female spouses and to all surviving male spouses who prove their dependency. But the question remains whether the discriminatory means employed—discrimination against women wage earners and surviving male spouses—itself substantially serves the statutory end. Surely the needs of surviving widows and widowers would be completely served either by paying benefits to all members of both classes or by paying benefits only to those members of either class who can demonstrate their need. Why, then, employ the discriminatory means of paying all surviving widows without requiring proof of dependency, but paying only those widowers who make the required demonstration? The only justification offered by the state court or appellees for not treating males and females alike, whether viewed as wage earners or survivors of wage earners, is the assertion that most women are dependent on male wage earners and that it is more efficient to presume dependency in the case of women than to engage in case-to-case determination, whereas individualized inquiries in the postulated few cases in which men might be dependent are not prohibitively costly. 14 The burden, however, is on those defending the discrimination to make out the claimed justification, and this burden is not carried simply by noting that in 1925 the state legislature thought widows to be more in need of prompt help than men or that today "the substantive difference in the economic standing of working men and women justifies the advantage" [given] to widows. 583 S.W.2d, at 168. It may be that there is empirical support for the proposition that men are more likely to be the principal supporters of their spouses and families. Weinberger v. Wiesenfeld, 420 U.S., at 645, 95 S.Ct., at 1231, but the bare assertion of this argument falls far short of justifying gender-based discrimination on the grounds of administrative convenience. Yet neither the court below nor appellees in this Court essay any persuasive demonstration as to what the economic consequences to the State or to the beneficiaries might be if, in one way or another, men and women, whether as wage earners or survivors, were treated equally under the workers' compensation law, thus eliminating the double-edged discrimination described in Part II of this opinion. 15 We think, then, that the claimed justification of administrative convenience fails, just as it has in our prior cases. In Frontiero v. Richardson, 411 U.S., at 689-690, 93 S.Ct., at 1771-1772, the Government claimed that, as an empirical matter, wives are so frequently dependent upon their husbands and husbands so rarely dependent upon their wives that it was cheaper to presume wives to be dependent upon their husbands while requiring proof of dependency in the case of the male. The Court found the claimed justification insufficient to save the discrimination. And in Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971), the Court said "[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause . . . ." See also Califano v. Goldfarb, 430 U.S., at 219-220, 97 S.Ct., at 1033 (opinion of STEVENS, J.). It may be that there are levels of administrative convenience that will justify discriminations that are subject to heightened scrutiny under the Equal Protection Clause, but the requisite showing has not been made here by the mere claim that it would be inconvenient to individualize determinations about widows as well as widowers. IV 16 Thus we conclude that the Supreme Court of Missouri erred in upholding the constitutional validity of § 287.240. We are left with the question whether the defect should be cured by extending the presumption of dependence to widowers or by eliminating it for widows. Because state legislation is at issue, and because a remedial outcome consonant with the state legislature's overall purpose is preferable, we believe that state judges are better positioned to choose an appropriate method of remedying the constitutional violation. Accordingly, we reverse the decision of the Supreme Court of Missouri and remand the case to that court for further proceedings not inconsistent with this opinion.6 17 So ordered. 18 Mr. Justice REHNQUIST, continuing to believe that Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), was wrongly decided, and that constitutional issues should be more readily reexamined under the doctrine of stare decisis than other issues, dissents and would affirm the judgment of the Supreme Court of Missouri. 19 Mr. Justice STEVENS, concurring in the judgment. 20 Nothing has happened since the decision in Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270, to persuade me that this kind of gender-based classification can simultaneously disfavor the male class and the female class. 21 To illustrate my difficulty with the analysis in Part II of the Court's opinion, it should be noted that there are three relevant kinds of marriages: (1) those in which the husband is dependent on the wife; (2) those in which the wife is dependent on the husband; and (3) those in which neither spouse is dependent on the other. 22 Under the Missouri statute, in either of the first two situations, if the dependent spouse survives, a death benefit will be paid regardless of whether the survivor is male or female; conversely, if the working spouse survives, no death benefit will be paid. The only difference in the two situations is that the surviving male, unlike the surviving female, must undergo the inconvenience of proving dependency. That surely is not a discrimination against females. 23 In the third situation, if one spouse dies, benefits are payable to a surviving female but not to a surviving male. In my view, that is a rather blatant discrimination against males. While both spouses remain alive, the prospect of receiving a potential death benefit upon the husband's demise reduces the wife's need for insurance on his life, whereas the prospect of not receiving a death benefit upon the wife's demise increases the husband's need for insurance on her life. That difference again places the husband at a disadvantage.* 24 No matter how the statute is viewed, the class against which it discriminates is the male class. I therefore cannot join Part II of the Court's opinion. I do, however, agree that Missouri has failed to justify the disparate treatment of persons who have as strong a claim to equal treatment as do similarly situated surviving spouses, see Califano v. Goldfarb, supra, at 223, 97 S.Ct., at 1035 (STEVENS, J., concurring in judgment), and that its statute violates the Equal Protection Clause of the Fourteenth Amendment. For that reason I concur in the Court's judgment. 1 Missouri Rev.Stat. § 287.240 (Supp.1979) provides in its entirety (emphasis added): "If the injury causes death, either with or without disability, the compensation therefor shall be as provided in this section: "(1) In all cases the employer shall pay direct to the persons furnishing the same the reasonable expense of the burial of the deceased employee not exceeding two thousand dollars. But no person shall be entitled to compensation for the burial expenses of a deceased employee unless he has furnished the same by authority of the widow or widower, the nearest relative of the deceased employee in the county of his death, his personal representative, or the employer, who shall have the right to give the authority in the order named. All fees and charges under this section shall be fair and reasonable, shall be subject to regulation by the division or the commission and shall be limited to such as are fair and reasonable for similar service to persons of a like standard of living. The division or the commission shall also have jurisdiction to hear and determine all disputes as to the charges. If the deceased employee leaves no dependents the death benefit in this subdivision provided shall be the limit of the liability of the employer under this chapter on account of the death, except as herein provided for burial expenses and except as provided in section 287.140; provided, that in all cases when the employer admits or does not deny liability for the burial expense, it shall be paid within thirty days after written notice, that the service has been rendered, has been delivered to the employer. The notice may be sent by registered mail, return receipt requested, or may be made by personal delivery; "(2) The employer shall also pay to the total dependents of the employee a death benefit on the basis of sixty-six and two-thirds percent of the employee's average weekly earnings during the year immediately preceding the injury as provided in section 287.250. Compensation shall be payable in installments in the same manner that compensation is required to be paid under this chapter, but in no case be less than at the rate of sixteen dollars per week nor more than one hundred twenty dollars per week or as provided in section 287.160. If there is a total dependent, no death benefit shall be payable to partial dependents or any other persons except as provided in subdivision (1); "(3) If there are partial dependents, and no total dependents, a part of the death benefit herein provided in the case of total dependents, determined by the proportion of his contributions to all partial dependents by the employee at the time of the injury, shall be paid by the employer to each of the dependents proportionately; "(4) The word 'dependent' as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his wages at the time of the injury. The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee and any death benefit shall be payable to them to the exclusion of other total dependents : "(a) A wife upon a husband legally liable for her support, and a husband mentally or physically incapacitated from wage earning upon a wife; provided, that on the death or remarriage of a widow or widower, the death benefit shall cease unless there be other total dependents entitled to any death benefit under this chapter. In the event of remarriage, a lump sum payment equal in amount to the benefits due for a period of two years shall be paid to the widow or widower. Thereupon the periodic death benefits shall cease unless there are other total dependents entitled to any death benefit under this chapter in which event the periodic benefits to which said widow or widower would have been entitled had he or she not died or remarried, shall be divided among such other total dependents and paid to them during their period of entitlement under this chapter; "(b) A natural, posthumous, or adopted child or children, whether legitimate or illegitimate, under the age of eighteen years, or over that age if physically or mentally incapacitated from wage earning, upon the parent legally liable for the support or with whom he is living at the time of the death of the parent. In case there is a wife or a husband mentally or physically incapacitated from wage earning, dependent upon a wife, and a child or more than one child thus dependent, the death benefit shall be divided among them in such proportion as may be determined by the commission after considering their ages and other facts bearing on the dependency. In all other cases questions of total or partial dependency shall be determined in accordance with the facts at the time of the injury, and in such other cases if there is more than one person wholly dependent the death benefit shall be divided equally among them. The payment of death benefits to a child or other dependent as provided in this paragraph shall cease when the dependent dies, attains the age of eighteen years, or becomes physically and mentally capable of wage earning over that age, or until twenty-two years of age if the child of the deceased is in attendance and remains as a full-time student in any accredited educational institution, or if at eighteen years of age the dependent child is a member of the armed forces of the United States on active duty; provided, however, that such dependent child shall be entitled to compensation during four years of full-time attendance at a fully accredited educational institution to commence prior to twenty-three years of age and immediately upon cessation of his active duty in the armed forces, unless there are other total dependents entitled to the death benefit under this chapter; "(5) The division or the commission may, in its discretion, order or award the share of compensation of any such child to be paid to the parent, grandparent, or other adult next of kin or legal guardian of the child for the latter's support, maintenance and education, which order or award upon notice to the parties may be modified from time to time by the commission in its discretion with respect to the person to whom shall be paid the amount of the order or award remaining unpaid at the time of the modification; "(6) The payments of compensation by the employer in accordance with the order or award of the division or the commission shall discharge the employer from all further obligations as to the compensation; "(7) All death benefits in this chapter shall be paid in installments in the same manner as provided for disability compensation; "(8) Every employer shall keep a record of the correct names and addresses of the dependents of each of his employees, and upon the death of an employee by accident arising out of and in the course of his employment shall so far as possible immediately furnish the division with said names and addresses." 2 At the time of her death Mrs. Wengler's wages were $69 per week. Had appellant prevailed in his attempt to receive full death benefits under the statute, his compensation would have been $46 per week. App. to Juris. Statement A23; see Mo.Rev.Stat. § 287.240(2) (Supp.1979). These benefits would have continued until appellant's death or remarriage. § 287.240(4)(a). 3 Recent decisions in three States have held unconstitutional workers' compensation statutes with presumptions of dependency identical to that at issue in this case. Arp v. Workers' Compensation Appeals Board, 19 Cal.3d 395, 563 P.2d 849, 138 Cal.Rptr. 293 (1977); Passante v. Walden Printing Co., 53 A.D.2d 8, 385 N.Y.S.2d 178 (1976); Tomarchio v. Township of Greenwich, 75 N.J. 62, 379 A.2d 848 (1977). The workers' compensation laws of the vast majority of States now make no distinction between the eligibility of widows and widowers for death benefits. 4 In Kahn v. Shevin, the Court upheld a Florida annual $500 real estate tax exemption for all widows in the face of an equal protection challenge. The Court believed that statistics established a lower median income for women than men, a discrepancy that justified "a state tax law reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden." 416 U.S., at 355, 94 S.Ct., at 1737. As in Kahn we accept the importance of the state goal of helping needy spouses, see infra, at 151, 100 S.Ct., at 1546, but as described in text the Missouri law in our view is not "reasonably designed" to achieve this goal. Thus the holding in Kahn is in no way dispositive of the case at bar. 5 As noted previously, see n. 3, supra, three state courts have recently held unconstitutional workers' compensation statutes with presumptions of dependency identical to that at issue in this case. In each of the three cases the court characterized the statute's discrimination as against both working wives and surviving husbands. See Arp v. Workers' Compensation Appeals Board, 19 Cal.3d, at 406, 563 P.2d, at 855, 138 Cal.Rptr., at 299 ("[I]t is noteworthy that the conclusive presumption in favor of widows discriminates not only against the widower but against the employed female as well"); Passante v. Walden Printing Co., 53 A.D.2d, at 12, 385 N.Y.S.2d, at 181 (the statute "compels dissimilar treatment both for surviving husbands and working wives, respectively, vis-a-vis widows and working males"); Tomarchio v. Township of Greenwich, 75 N.J., at 75, 379 A.2d, at 854 (statute unconstitutionally discriminates against both working women and surviving husbands). 6 Appellees attempt to draw support from the fact that Goldfarb and Wiesenfeld arose in the context of the Social Security program. First, they argue, the statute at issue here, unlike a social insurance system that provides blanket survivorship benefits, seeks to compensate for specific economic loss to the worker or his dependents, and appellant can claim no such loss. Relatedly, a widower who suffers and can prove any loss of support is entitled to a corresponding level of benefits under § 287.240, whereas Mr. Goldfarb, under the Social Security Act provision, had to show that he had received at least one-half of his support from his wife at the time of her death. These arguments rely on the fact that covered widowers suffering provable economic loss will receive benefits corresponding to that loss under § 287.240, but they ignore the statute's discriminatory effect on working women by providing them with less protection for their families than working men. Appellees also argue that, unlike the Social Security program, the workers' compensation system is not based on mandatory contributions from past wage earnings of the employee. Thus appellant's late wife was not deprived of a portion of her earnings to contribute to a fund out of which her husband would not benefit. But we have before rejected the proposition that "the Constitution is indifferent to a statute that conditions the availability of noncontributory welfare benefits on the basis of gender," Califano v. Westcott, 443 U.S. 76, 85, 99 S.Ct. 2655, 2661, 61 L.Ed.2d 382 (1979), and we refuse to part ways with our earlier decisions by applying a different standard of review in this case simply because the system is funded by employer rather than employee contributions. * There is no claim that the wage earner's take-home pay is affected by the Missouri statute. Whether the wage earner is single or married, and, if married, whether the other spouse is male or female, dependent or independent, the wage earner's pay is the same.

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446 U.S. 236 100 S.Ct. 1519 64 L.Ed.2d 181 Robert R. WILLIAMS et al., Appellants,v.Leila G. BROWN et al. No. 78-357. April 22, 1980. On Appeal from the United States Court of Appeals for the Fifth Circuit. Facts and opinion, Brown v. Moore, D.C., 428 F.Supp. 1123. Case below, Brown v. Moore, 575 F.2d 298. Charles S. Rhyne, Washington, D.C., for appellants in No. 77-1844. James U. Blacksher, Mobile, Ala., for appellees in No. 77-1844. James P. Turner, Washington, D.C., for the United States, as amicus curiae, in support of appellees in both cases. William H. Allen, Washington, D.C., for appellants in No. 78-357. Eric Schnapper, Washington, D.C., for appellees in No. 78-357. PER CURIAM. 1 The judgment of the Court of Appeals is vacated and the case is remanded to that court for further proceedings in light of the decision of the Court announced today in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47. 2 It is so ordered. 3 Mr. Justice BLACKMUN, concurring. 4 I, of course, must accept the Court's vacation of the judgment and its remand. If, however, we were to reach themerits, then, in contrast to the result in City of Mobile v. Bolden, ante, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47, I would affirm the judgment of the Court of Appeals in this case. 5 Mr. Justice WHITE, dissenting. 6 Because the decision below in this case is based on findings of fact and conclusions of law virtually identical to those in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed. 47, I dissent for the reasons stated in my opinion in that case, ante, p. 94, 100 S.Ct., p. 1514.

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446 U.S. 253 100 S.Ct. 1618 64 L.Ed.2d 196 UNITED STATES, Plaintiff,v.State of LOUISIANA et al. No. 9, Orig. Argued March 18, 1980. Decided April 28, 1980. Rehearing Denied June 16, 1980. See 447 U.S. 930, 100 S.Ct. 3007. Syllabus Held: 1. As the Special Master recommended, the United States is not obligated to account for and pay Louisiana either the value of the use of Louisiana's share of impounded funds that have been awarded and paid to the State under mineral leases on lands off its Gulf Coast, or interest upon that portion of those funds. The Interim Agreement that the parties entered into in response to this Court's ruling enjoining them from leasing wells in the disputed tidelands area except by agreement provided only that the payments made to the United States on each lease within the disputed area were to be impounded "in a separate fund in the Treasury of the United States" and, upon determination of the ownership of the lands, were to be taken from that fund and paid to the party entitled to them. The agreement contains no provision for the payment of interest or for the use of the funds or for investment, and there is nothing in the agreement's use of the word "impound," or in Louisiana's characterization of the arrangement as an escrow, to imply an obligation on the United States' part to pay interest or to pay for the use of the money. The impoundment of the funds having served its intended purpose, and all payments due Louisiana from the impounded funds having been made, the United States has fulfilled the obligations imposed upon it by the agreement. Pp. 261-266. 2. Contrary to the Special Master's recommendations, Louisiana is obligated to account to the United States for revenues derived by the State from mineral leases on areas within the zone contiguous to the coastline (Zone 1) adjudicated to the United States. The provision of the Outer Continental Shelf Lands Act authorizing the United States to make an agreement with a State as to existing mineral leases and the issuance of new leases "pending the settlement or adjudication" of a controversy as to ultimate ownership, and stating that payments made pursuant to such an agreement shall be considered as compliance with certain lease validation requirements of the Act, does not govern payments made by Louisiana's lessees in Zone 1 so as to foreclose any federal claim with respect to those payments. The provision means no more than that a lessee is not in default so long as the agreement remains in effect and he makes the required payments, and there is no basis for reading into the provision a waiver by the United States of Louisiana's independent duty to account, or a waiver of any claim for money due the United States. The State's obligation does not derive from the Act, but was imposed by this Court's 1950 decree specifying that the United States was entitled to an accounting from Louisiana of all sums received by the State from lands adjudicated to the United States, was not waived by the Interim Agreement, and is not excused by the above provision of the Outer Continental Shelf Lands Act. Pp. 266-272. 3. The Court accepts, upon acquiescence of the parties, the Special Master's recommendations that Louisiana has no obligation to account for and pay to the United States money collected by the State as severance taxes on minerals removed from areas adjudicated to the United States. P. 272. Exceptions to Special Master's supplemental report overruled in part and sustained in part, and case remanded. Louis F. Claiborne, Washington, D. C., for plaintiff. William J. Guste, Jr., Atty. Gen., and Frederick W. Ellis, Baton Rouge, La., for defendants. Mr. Justice BLACKMUN delivered the opinion of the Court. 1 We are concerned here with certain features of what appears to be the final stage of the long-continuing and sometimes strained controversy between the United States and the State of Louisiana over the proceeds of mineral leases on lands off Louisiana's Gulf Coast. Specifically at issue are the asserted obligation of the United States for interest on, or for the value of the use of, impounded funds that have been awarded and paid to Louisiana, and the asserted obligation of Louisiana to account to the United States for certain unimpounded lease revenues received by the State. 2 * Litigation between the United States and the State of Louisiana over rights in lands submerged in the Gulf of Mexico off the Louisiana coast began over 30 years ago, in 1948, when the United States moved this Court, under its original jurisdiction, for leave to file a complaint. The Government prayed for a decree (a) declaring rights of the United States as against Louisiana over lands "underlying the Gulf of Mexico, lying seaward of the ordinary low-water mark on the coast of Louisiana and outside of the inland waters, extending seaward twenty-seven marine miles and bounded on the east and west, respectively, by the eastern and western boundaries of the State of Louisiana," and (b) requiring that Louisiana account to the United States for money received by the State after June 23, 1947, from the area so designated. Over opposition, the requested leave was granted. United States v. Louisiana, 337 U.S. 902, 69 S.Ct. 1040, 93 L.Ed. 1716 (1949). Louisiana was directed to answer. 337 U.S. 928, 69 S.Ct. 1490, 93 L.Ed. 1736 (1949). The State, however, filed a demurrer and motions to dismiss and for other relief. These were overruled and denied. 338 U.S. 806, 70 S.Ct. 36, 94 L.Ed. 488 (1949). 3 Louisiana then did answer, placing in issue the claims of the United States and asserting affirmative defenses. The plaintiff's responsive motion for judgment was set down for argument. The Court ruled that United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), then recently decided, controlled the Louisiana litigation. In that case, the Court had held that California was not the owner of the marginal belt along its coast beyond the low-water mark, and that the Federal Government had primary rights in and power over that belt. The rationale, it was said, was that "[n]ational rights must therefore be paramount in that area." 339 U.S. 699, 704, 70 S.Ct. 914, 916, 94 L.Ed. 1216 (1950). A decree was entered enunciating the United States' possession of "paramount rights" and Louisiana's lack of "title thereto or property interest therein"; enjoining Louisiana from carrying on activities in the area for the purpose of taking petroleum, gas, or other mineral products without authority first obtained from the United States; and stating that the United States was entitled to an accounting from Louisiana of sums derived by the State from the area since June 5, 1950 (the date of the Court's opinion). 340 U.S. 899, 71 S.Ct. 275, 95 L.Ed. 651 (1950). A like decree was entered in a companion case against Texas. United States v. Texas, 340 U.S. 900, 71 S.Ct. 276, 95 L.Ed. 652 (1950). 4 The Submerged Lands Act, 67 Stat. 29, 43 U.S.C. § 1301 et seq., passed May 22, 1953, came in response to these rulings. By that statute, the United States released to the coastal States its rights in the submerged lands within stated limits and confirmed its own rights therein seaward of those limits. The Act was sustained as a constitutional exercise of Congress' power to dispose of federal property. Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689 (1954). 5 The passage of the Act, however, did not end the controversy. Opposing claims continued to be asserted, and Louisiana continued to conduct leasing activities with respect to submerged lands in the disputed area. Accordingly, in 1956, the United States sought and was granted leave to file a complaint in a new suit (the present litigation) against Louisiana. 350 U.S. 990, 76 S.Ct. 541, 100 L.Ed. 856. The Court forthwith enjoined Louisiana and the United States "from leasing or beginning the drilling of new wells in the disputed tidelands area . . . unless by agreement of the parties filed here." 351 U.S. 978, 76 S.Ct. 1043, 100 L.Ed. 1494 (1956). In response to this ruling, on October 12, 1956, the parties entered into an Interim Agreement designed to permit further development of the submerged lands in dispute. Interpretation of this agreement is the central task of this opinion. The lawsuit continued, and in 1957 the other Gulf States in effect were requested to intervene. 354 U.S. 515, 77 S.Ct. 1373, 1 L.Ed.2d 1525. 6 In due course this Court held, among other things, that the Submerged Lands Act granted Louisiana ownership "to a distance no greater than three geographical miles from its coastlines, wherever those lines may ultimately be shown to be." 363 U.S. 1, 79, 80 S.Ct. 961, 1005, 4 L.Ed.2d 1025 (1960). A "Final Decree" was entered accordingly. 364 U.S. 502, 81 S.Ct. 258, 5 L.Ed.2d 247 (1960). That decree, like the one of 1950 in the earlier litigation, confirmed in the United States as against Louisiana all the land, minerals, and other natural resources underlying the Gulf of Mexico more than three geographic miles seaward from the coastline; recited that Louisiana had no interest therein and was enjoined from interfering with the rights of the United States; stated that as against the United States Louisiana was entitled to all the lands, minerals, and other natural resources underlying the Gulf extending seaward from its coastline three geographic miles, and that the United States was not entitled to any interest therein (with a stated exception inapplicable here); and provided that whenever the location of the coastline of Louisiana should be agreed upon or determined, the State was to render the United States an appropriate accounting of all sums derived by it since June 5, 1950, "either by sale, leasing, licensing, exploitation or otherwise from or on account of any of the lands or resources [decreed to the United States] . . . provided, however, that as to the State of Louisiana the allocation, withdrawal and payment of any funds now impounded under the Interim Agreement between the United States and the State of Louisiana, dated October 12, 1956, shall, subject to the terms hereof, be made in accordance with the appropriate provisions of said Agreement." Id., at 503, 81 S.Ct., at 259. 7 On December 13, 1965, a supplemental decree was entered. 382 U.S. 288, 86 S.Ct. 419, 15 L.Ed.2d 331. It generally reconfirmed the respective rights of the United States and Louisiana as theretofore determined; released to the United States all sums held impounded by it under the Interim Agreement and attributable to the lands confirmed in the United States; released to Louisiana all sums held impounded by it under that agreement and attributable to the lands confirmed in the State; directed, within 75 days, the payments required of the respective parties, and an accounting from each of sums attributable to lands confirmed in the other, id., at 293, 86 S.Ct., at 421; and retained jurisdiction particularly with respect "to the remainder of the disputed area," id., at 295, 86 S.Ct., at 423. 8 The determination of the exact location of the Louisiana coastline remained for resolution. In United States v. California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965), this Court held that Congress had left to the courts the task of defining "inland waters," and the Court adopted for purposes of the Submerged Lands Act the definitions contained in the international Convention on the Territorial Sea and the Contiguous Zone, ratified by the United States in 1961. [1964] 15 U.S.T. (pt. 2) 1607, T.I.A.S. No. 5639. In the present litigation, in March 1969, the Court held that that part of Louisiana's coastline which, under the Submerged Lands Act, consists of "the line marking the seaward limit of inland waters," see 43 U.S.C. § 1301(c), is also to be drawn in accordance with the definitions of the Convention. It decided to refer to a Special Master particularized disputes over the precise boundary between the submerged lands belonging to the United States and those belonging to Louisiana. 394 U.S. 11, 89 S.Ct. 773, 22 L.Ed.2d 44. A Master was appointed. 395 U.S. 901, 89 S.Ct. 1737, 23 L.Ed.2d 215 (1969). 9 A second supplemental decree was entered December 20, 1971. 404 U.S. 388, 92 S.Ct. 544, 30 L.Ed.2d 525. That decree, among other things, determined that the United States had exclusive rights to an area of the Continental Shelf lying more than one foot seaward of a line therein described; recited that sums held impounded by the United States under the Interim Agreement and derived from those lands were released to the United States, id., at 389, 92 S.Ct., at 544, and provided that leases of lands lying partly within that area and partly landward thereof were not affected by the decree, so that revenues derived therefrom were to remain subject to impoundment, id., at 402, 92 S.Ct., at 557. 10 Still a third supplemental decree was entered October 16, 1972. 409 U.S. 17, 93 S.Ct. 1478, 34 L.Ed.2d 170. By this decree, the Court ruled that, with a stated exception, Louisiana was entitled to all lands, minerals, and other natural resources lying more than one foot landward of a line therein described and seaward of the ordinary low-water mark on the Louisiana shore, id., at 17-18, 93 S.Ct., at 1479; that leases of land partly within that area and partly seaward thereof were not affected by the decree, so that revenues derived therefrom were to remain subject to impoundment; and that all sums held impounded by Louisiana or the United States under the Interim Agreement derived from leases of lands wholly within areas allotted to Louisiana were released to that State, id., at 31, 93 S.Ct., at 1491. 11 The Special Master thereafter filed his report dated July 31, 1974. Exceptions to that report made by the United States and by Louisiana, respectively, were overruled, the Special Master's recommendations were accepted, and the parties were directed to prepare and file a proposed decree establishing "a baseline along the entire coast of the State of Louisiana." 420 U.S. 529, 530, 95 S.Ct. 1180, 43 L.Ed.2d 373 (1975). The parties were able to agree, and a fourth supplemental decree was entered June 16, 1975. 422 U.S. 13, 95 S.Ct. 2022, 44 L.Ed.2d 652. Exclusive rights were affirmed in the respective parties in areas lying landward or seaward of a line three geographical miles seaward of the baseline, and impounded sums were released accordingly. Id., at 13-14, 95 S.Ct., at 2023. Cross-payments within 90 days and cross-accountings within 60 days were ordered. Id., at 15, 95 S.Ct., at 2023. The decree recited: "It is understood that the parties may be unable to agree on . . . whether interest may be due on funds impounded pursuant to the Interim Agreement of October 12, 1956." Id., at 17, 95 S.Ct., at 2024. The required accountings were filed and referred to the Special Master. 423 U.S. 909, 96 S.Ct. 211, 46 L.Ed.2d 138 (1975). 12 The Master held hearings on the accountings and on the objections that were interposed. He now has filed his supplemental report dated August 27, 1979. Louisiana and the United States have each filed exceptions to that report. II 13 As was observed at the beginning of this opinion, the parties and this Court should be near the end of this long-enduring litigation. The territorial dispute has been resolved. The boundary between federal and state submerged lands, except for the formal entry of yet another supplemental decree describing that boundary, has been fixed. And each party has been directed to account for revenues derived from areas adjudicated to the other sovereign. 14 The Special Master's supplemental report recites the filing of the several accountings by Louisiana and by the United States; the respective objections made to those accountings; the agreements reached by the parties; and the fact that three issues remain unresolved. As phrased by the Master, these issues are: 15 First issue—Is the United States obligated to account for and pay to the State of Louisiana either the value of the use of Louisiana's share of the impounded funds or interest upon that portion of those funds? 16 Second issue—Does Louisiana have the obligation to account for revenues received by it from mineral leases on areas lying within Zone 1? 17 Third issue—Does Louisiana have the obligation to account for as unimpounded funds and to pay to the United States money collected by it as severance taxes on minerals removed from areas subsequently determined to belong to the United States? 18 The Master's ruling on each issue was in the negative. He has recommended that all exceptions to the accountings be overruled, and that the accountings be approved as filed. 19 Before this Court, Louisiana has filed exceptions only to the Special Master's recommendations as to the first stated issue. The United States has filed exceptions only as to the second stated issue. The Master's recommendations as to the third stated issue, concerning money collected by Louisiana as severance taxes, thus are not the subject of any exceptions here.1 In the absence of present controversy we accept the Special Master's recommendations on that issue. We consider the exceptions to the other issues in turn. III The First Stated Issue 20 The Interim Agreement of October 12, 1956, between the United States and Louisiana, referred to in this Court's "Final Decree" of December 12, 1960, see 364 U.S., at 503, 81 S.Ct., at 259, came into being after the Court, on June 11, 1956, had provided: 21 "IT IS FURTHER ORDERED that the State of Louisiana and the United States of America are enjoined from leasing or beginning the drilling of new wells in the disputed tidelands area pending further order of this Court unless by agreement of the parties filed here." 351 U.S. 978, 76 S.Ct. 1043, 100 L.Ed. 1494. 22 The Interim Agreement recites that the parties "desire to provide for the impoundment of . . . sums . . . payable under mineral leases in the disputed area, pending the final settlement or adjudication of the said controversy." App. to Reply Brief for Louisiana 9a. It divided the submerged lands off the Louisiana coast into four zones therein described. The zone contiguous to the coastline was designated as Zone 1, the next most seaward as Zone 2, the next as Zone 3, and the most seaward as Zone 4. Id., at 10a-11a. It described the area comprising Zones 2 and 3 as the "disputed area," id., at 11a, and it conferred upon the United States (with certain exceptions) the responsibility for collecting receipts from the disputed zones, id., at 26a-27a. By ¶ 7(a), the United States agreed (with exclusions not material here) "to impound in a separate fund in the Treasury of the United States a sum equal to all . . . payments heretofore or hereafter paid to it for and on account of each lease, or part thereof, in Zones 2 and 3." Id., at 14a. Certain other payments were to be impounded by Louisiana. Paragraph 9 of the agreement then provides: 23 "[T]he impounded funds provided for herein shall be held intact, in a separate account for each lease or portion thereof affected, by each party until title to the area affected is determined. Whereupon, except as otherwise herein provided: 24 * * * * * 25 "(b) Any funds derived from an area finally determined to be owned by the State of Louisiana [with an exception not here material] shall be taken from the separate and impounded fund in the Treasury of the United States provided for herein," 26 and paid to the appropriate officer of Louisiana. Id., at 18a-19a. 27 Pursuant to these provisions of the Interim Agreement, the United States collected and retained payments on mineral leases for operations within the designated disputed area. As a consequence of the first supplemental decree, entered December 13, 1965, see 382 U.S., at 293, 86 S.Ct., at 421, the United States paid Louisiana some $34 million of impounded funds. Indeed, with an additional payment of some $136 million in 1975, pursuant to the supplemental decree of June 16, 1975, see 422 U.S., at 14-15, 95 S.Ct., at 2023, all payments due Louisiana from the funds impounded by the United States have been made. But the United States has not paid Louisiana any interest on the funds so impounded, and has not made any payment for the use of those funds while they were held in the United States Treasury. Louisiana asserts a claim for such interest, apparently approximating $88 million, or for the value of the use of the money during the period of impoundment, and the United States resists these claims. 28 Louisiana's position is at least fourfold: (1) The impoundment provisions of the Interim Agreement implied a trust that imposed on the United States the fiduciary duty of a trustee in its handling of the impounded funds. It is said that an escrow arrangement in fact was established. The presence of a trust is evident from the conduct and relationship of the parties, from documentary evidence, and from admissions by federal officials. (2) The United States used Louisiana's money for its own purposes and without authority under the Interim Agreement. The funds were deposited in the general account of the Treasurer of the United States where they were available, and used, to meet cash needs of the Federal Government. (3) The United States had the duty to invest the impounded funds for the benefit of both parties. This duty is implied from the provisions of the agreement; is imposed upon the United States as a trustee as a matter of law; was breached by the refusal of the United States to honor a request by Louisiana to invest the funds; is supported by the provisions of 31 U.S.C. § 547a to the effect that "[a]ll funds held in trust by the United States . . . shall be invested" in interest-bearing securities; and is not limited by the supplemental decree of June 16, 1975. (4) Equitable remedies to prevent the unjust enrichment of the United States at the expense of Louisiana are appropriate. 29 We find no merit in any of Louisiana's contentions. The Interim Agreement provided only that the payments made to the United States on each lease within the disputed area were to be impounded "in a separate fund in the Treasury of the United States" and, upon determination of the ownership of the land, were to be taken from that separate and impounded fund and paid to the party entitled to them. The agreement contains no express provision for the payment of interest or for the use of the funds or for investment. Neither do we find anything in the agreement's use of the word "impound" or, indeed, in Louisiana's characterization of the arrangement as an escrow (a word that does not appear in the agreement), that implies an obligation on the part of the United States to pay interest or to pay for the use of the money. The word "impound," in its application to funds, means to take or retain in "the custody of the law." Black's Law Dictionary 681 (5th ed., 1979); Bouvier's Law Dictionary 1515 (8th ed., 1914). That obligation, as is an escrow, is to hold and deliver property intact. 30 What actually happened here, of course, was that, as the funds were paid to the United States, the lessees' checks were cashed and the resulting cash was commingled with general funds of the Treasury and used in governmental operations. A separate account, No. 14X6709, nonetheless, was established on the books of the Treasury for these payments, and a credit entry covered every receipt from the disputed area. The United States did not stockpile that inflowing cash in a far corner of the Government vaults. But the special account was maintained and it accurately recorded the increasing potential liability of the United States to Louisiana. This was much more than a recordkeeping device. The receipts were never treated as governmental revenues. The recognition of a contingent liability, corresponding to the cash deposited, enabled the United States to make prompt payment to Louisiana without special congressional authorization or appropriation. There was no proof or even suggestion that at any time there were insufficient funds in the United States Treasury to pay any amount that might be determined to be due Louisiana from the impoundment. 31 Apart from constitutional requirements, in the absence of specific provision by contract or statute, or "express consent . . . by Congress," interest does not run on a claim against the United States. Smyth v. United States, 302 U.S. 329, 353, 58 S.Ct. 248, 252, 82 L.Ed. 294 (1937); Albrecht v. United States, 329 U.S. 599, 605, 67 S.Ct. 606, 609, 91 L.Ed. 532 (1947); United States v. N. Y. Rayon Importing Co., 329 U.S. 654, 658-659, 67 S.Ct. 601, 603-604, 91 L.Ed. 577 (1947). See also 28 U.S.C. § 2516. It follows that the same is true as to any claim of duty to invest. 32 We are persuaded, also, that the omission, in the Interim Agreement, of any provision for interest was a conscious one. When the agreement was signed in 1956, almost $60 million in disputed revenues already had accumulated. The importance of any interest obligation was obvious. And pertinent here is the fact that two of Louisiana's negotiators candidly conceded that they did not insist on an interest clause because they knew the United States would not agree to one. Tr. 70, 95, 98, 99, 102, 103, 163. Nor does Louisiana's intimation that it was willing to pass the matter in silence because the agreement was expected to be short lived carry weight. The agreement itself specified no term, and, in its ¶ 13, it provided for operations after a year had elapsed. 33 We note, too, that Louisiana is not in a position to assert that it was unaware that the funds were not invested or that it did not know that the United States held itself not responsible for interest. The State received regular monthly reports of the amounts credited to the impounded account, as the agreement's ¶ 8 required. Those reports reflected no interest. Louisiana accepted the $34 million distribution, made pursuant to the 1965 decree, without complaint about the absence of interest. And communications flowed from officers of the State and its representatives in Congress, suggesting the deposit of some of the funds in Louisiana banks, presumably so that they might enjoy the free use of those funds. The Louisiana Legislature, it is true, on June 6, 1967, by House Concurrent Resolution No. 251, did call upon the United States "to take such steps as are necessary to effect a prudent and effective investment of the funds now and hereafter so impounded." See 1967 Louisiana Legislative Calendar 161-162. The quoted language, however, was only precatory and suggestive; it was not demanding. At most, it amounted to a request for a change of status. A Treasury official, pleading absence of authority, promptly returned a negative answer. In fact, Louisiana apparently never took the position that it was entitled to interest upon, or payment for the use of, its share of the impounded funds until 1975 when it filed its objections to the accounting. And Louisiana made no request for modification of the Interim Agreement. The State thus acquiesced for two decades. 34 We conclude that the United States fulfilled the obligations imposed upon it by the agreement; that the impoundment served its intended purpose; that there is no liability on the part of the United States for interest or for the use of the funds; and that the United States has no further obligation for payment beyond those it has performed. IV The Second Stated Issue 35 This issue concerns money paid to Louisiana by oil and gas lessees since 1950 in respect to Zone 1 areas now adjudicated to the United States. Louisiana asserts a right permanently to retain that money. The amount involved is some $19 million.2 36 During the past three decades these federal lands have been administered by Louisiana. Before the Interim Agreement of 1956, Louisiana acted unilaterally in leasing those areas; after that date, it acted with the acquiescence of the United States given by the agreement. 37 The Special Master concluded that, by permitting Louisiana to administer Zone 1, the United States waived its rights to demand an accounting of, and payment with respect to, the revenues derived from its lands in the Zone. The Master did acknowledge that the very opposite result "would certainly be the case in the absence of any adjudication or agreement between the parties to the contrary." Supplemental Report 15. He found a waiver on the part of the United States, however, that centered in a provision of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1336, which he read as foreclosing the federal claim to the money. He noted that the Interim Agreement contained no specific language regarding payments derived from leases on areas lying within Zone 1 or Zone 4, although it did with respect to revenues derived from leases on areas lying within Zones 2 and 3. He stressed ¶ 6 of the agreement, which provided that notwithstanding any adverse claim, Louisiana, as to any area in Zone 1 (and the United States, as to any area in Zone 4), "shall have exclusive supervision and administration, and may issue new leases and authorize the drilling of new wells and other operations without notice to or obtaining the consent of the other party." App. to Reply Brief for Louisiana 14a. Louisiana, in fact, collected rentals on mineral leases on areas in Zone 1. The United States did not question Louisiana's right to do so. The Master observed that Louisiana anticipated the possibility that some portions of Zone 1, upon which it granted leases, might ultimately be adjudged to belong to the United States, for it inserted in almost all the leases a provision to the effect that it was granting the right to extract minerals only from those parts of the leasehold areas owned by Louisiana. The conclusion the Master drew was that Louisiana was entitled to keep all rentals derived prior to the entry of the supplemental decree of June 16, 1975, from leases upon areas lying within Zone 1, and that the United States had no right to recover them. 38 We are constrained to disagree with the Special Master on this issue. We accept the submission of the United States that the "ground rules" of the controversy were laid down in 1950. The Court's very first decree, issued December 11, 1950, specified, 340 U.S., at 900, 71 S.Ct., at 275, that the United States was entitled to an accounting from Louisiana of all sums derived by the State from lands adjudicated to the United States. This was a principle laid down independently of the not-yet-enacted Submerged Lands Act and Outer Continental Shelf Lands Act. The principle had its roots in the Court's decision in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). 39 The Submerged Lands Act of 1953 did not change the ground rules. It released and "confirmed" a coastal belt to the coastal States, and the United States thereby "release[d] and relinquishe[d] all claims of the United States . . . for money . . . arising out of [past] operations" within the belt. 43 U.S.C. § 1311(b)(1). For areas seaward of that belt, however, the States' obligation to account and pay remained unchanged. This Court's decision of May 31, 1960, in the second suit, was unambiguous on this matter, and the Court made plain the continued vitality of the original ground rules. 363 U.S., at 7, 83, and n. 140, 80 S.Ct., at 1007, n. 140. The cited footnote stated flatly: 40 "On June 5, 1950, the date of this Court's decision in 41 the Louisiana and Texas cases, all coastal States were put on notice that the United States was possessed of paramount rights in submerged lands lying seaward of their respective coasts. . . . [T]he United States remains entitled to an accounting for all sums derived since June 5, 1950, from lands not so relinquished [by the Submerged Lands Act]." The preceding Interim Agreement of October 1956 was forced into being by continuing conflict, by an injunction obtained by Louisiana in its courts, and by the injunction issued by this Court on June 11, 1956. See 351 U.S. 978, 76 S.Ct. 1043, 100 L.Ed. 1494. As we have noted, the agreement divided the submerged lands into the four zones hereinabove described. The first, nearest the shore, was to be administered by Louisiana. The others were to be administered by the United States, except for certain leases already granted by Louisiana in Zone 2 and the requirement of state concurrence for any new leasing in that zone. Receipts from Zones 2 and 3 were to be "impounded." No such impoundment obligation, however, was imposed on the United States with respect to Zone 4 or upon Louisiana with respect to Zone 1. 42 It turned out that the seaward boundary of Louisiana's submerged lands, as finally determined, does not coincide with the line that divided Zones 1 and 2. The final boundary meanders back and forth across the agreement's line between those two Zones producing bulges on each side. Louisiana has been successful in some of its claims to lands within Zone 2, and the United States has accounted for and paid over funds received from those areas. Yet Louisiana denies any corresponding obligation to account for and pay over revenues it received from those portions of Zone 1 that the United States has successfully claimed. 43 Louisiana asserts that the United States, by the Interim Agreement, waived and abandoned its right to revenues from Zone 1 during the life of the agreement. The agreement itself contains no express words of waiver. On the other hand, neither does it provide specifically for eventual repayment of any revenues from portions of Zone 1 ultimately adjudicated to the United States. But the agreement does recite: "nor shall any provision hereof be the basis for . . . waiving in any manner any right, interest, claim, or demand whatsoever of either party now pending in the proceedings above referred to, or otherwise." App. to Reply Brief for Louisiana 9a. And it further recites that the baseline from which the several zones were measured had not been surveyed or finally fixed, and that no inference was to be drawn from the use of that baseline. Id., at 10a. These provisions of the agreement persuade us that each party specifically was reserving any monetary claims it might have outside Zones 2 and 3. 44 It was to be expected, of course, that most of Zone 1 would ultimately be adjudicated to Louisiana. This fact accounts for the decision to permit the State to enjoy, for the interim, the revenues from that area.3 45 The Outer Continental Shelf Lands Act was the complement of the Submerged Lands Act, for it provided in detail for the administration of federal submerged lands lying beyond those granted to the coastal States. It authorized an agreement with a State "respecting operations under existing mineral leases" and the issuance of new leases "pending the settlement or adjudication" of a controversy as to ultimate ownership. 43 U.S.C. § 1336. This provision is referred to in the Interim Agreement, and it is the one on which the Special Master focused his attention. The Master placed particular stress on the following sentence in the statute: 46 "Payments made pursuant to such agreement, or pursuant to any stipulation between the United States and a State, shall be considered as compliance with section 1335(a)(4) of this title." 47 The Master viewed the payments made by Louisiana's lessees in Zone 1 as governed by this language and concluded that any federal claim with respect to those payments was foreclosed. 48 We do not so read that sentence. The provision, we feel, means no more than that a lessee is not in default so long as the agreement remains in effect and he makes the payments required by it. The Act protects the lessee. Whatever the lessee's ultimate obligation, if any, to the United States might turn out to be, there is no basis for reading into § 1336 a waiver by the United States of Louisiana's independent duty to account, or a waiver of any claim for money due the United States. The State's obligation does not derive from the Shelf Lands Act; it was imposed by this Court's 1950 decree, was not waived by the Interim Agreement, and is not excused by the quoted provision of the Shelf Lands Act. 49 This conclusion is buttressed by the fact that until 1975 the actions of the parties and the rulings of this Court consistently indicate that this was the common understanding. The 1960 decree was prepared by the parties at the invitation of the Court. 363 U.S., at 85, 80 S.Ct., at 1007. The decree itself recognized that once the coastline was determined, Louisiana was to account and to pay. 364 U.S., at 503, 81 S.Ct., at 259. The decree of December 13, 1965, although distinguishing between impounded and nonimpounded funds, contained no waiver of any obligation relating to receipts that were not impounded. 382 U.S., at 294, 86 S.Ct., at 422. This Court's decision of March 17, 1975, 420 U.S. 529, 95 S.Ct. 1180, 43 L.Ed.2d 373, and the implementing decree of June 16, 1975, 422 U.S. 13, 95 S.Ct. 2022, 44 L.Ed.2d 652, recognized that in some places the true limit of Louisiana's submerged lands was shoreward of the Zone 1 line. That decree, also, was proposed by the parties at the invitation of the Court. 420 U.S., at 530, 95 S.Ct., at 1180. It declared rights divided by a specified boundary line which, in many places, did not correspond with the seaward edge of Zone 1. It required each party to account for and to pay over impounded revenues attributable to lands adjudicated to the other. 422 U.S., at 15-16, 95 S.Ct., at 2023-2024. We see no reason to conclude that those accounting provisions were included only for informational purposes, rather than to spell out the parties' pecuniary obligations.4 V 50 In summary: We accept, upon acquiescence of the parties, the Special Master's recommendations that Louisiana has no obligation to account for and to pay to the United States money collected by it as severance taxes on minerals removed from areas adjudicated to the United States. We agree with and accept the Special Master's recommendations that the United States is not obligated to account for and pay Louisiana either the value of the use of Louisiana's share of the impounded funds or interest upon that portion of those funds. We therefore overrule Louisiana's exceptions to the supplemental report of the Special Master. We disagree with and do not accept the Special Master's recommendations with respect to Louisiana's obligation to account for revenues derived by it from mineral leases on areas within Zone 1 adjudicated to the United States. Instead, we sustain the exception of the United States and rule that Louisiana does have the obligation to account for such revenues received by it. Subject to this ruling, the respective accountings are approved as filed. 51 We leave to the Special Master and the parties the determination of the final amount due and owing, and of the method of payment. The case is remanded to the Special Master for further proceedings. 52 It is so ordered. 53 Mr. Justice MARSHALL, took no part in the consideration or decision of this case. 54 Mr. Justice POWELL, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST join, concurring in part and dissenting in part. 55 I concur in the Court's opinion except with respect to its disposition of the "second stated issue." Ante, at 266-272. As framed by the Special Master, the second issue is whether Louisiana has "the obligation to account for revenues received by it from mineral leases on areas lying within Zone 1. . . ." Ante, at 260. The Special Master found that the State had no such obligation. The United States filed an exception, and the Court sustains it. 56 I would accept the recommendations of the Master on all three issues, including his finding that Louisiana has no obligation to account for revenues derived from Zone 1. The latter finding certainly is not free from doubt, but the able Master has a more intimate familiarity with this "long-continuing and sometimes strained controversy," ante, at 254, than an appellate judge possibly can acquire by studying only the available record. Although we have the duty to make an independent judgment, I cannot conclude that the Master's finding on the second stated issue is erroneous. Accordingly, I dissent on this issue. 1 The United States asserts: "For a variety of reasons—including a reluctance to burden the Court with an esoteric and complex question of no recurring importance—we are not excepting to the Master's conclusion with respect to the State's obligation to pay over to the United States the severance taxes attributable to the extraction of minerals beyond State jurisdiction." Memorandum of United States in Support of Exception, p. 3. 2 Louisiana's total receipts attributable to the federal lands in Zone 1 since 1950 amount to some $23 million. This figure, however, includes the severance taxes (the third stated issue) to which the United States no longer makes claim. The United States calculates that Louisiana will be indebted to it for some $19 million if its exception to the second stated issue is sustained. It concedes, however, that Louisiana would be entitled to an offset for unimpounded moneys, received by the United States from Louisiana's submerged lands, in excess of $5 million. Memorandum of United States in Support of Exception, pp. 40-41, n. 23. We recognize that Louisiana argues that its indebtedness will be much smaller even if the United States' position is sustained. 3 We see no substance in the fact that most, but not all, of the leases granted by Louisiana in Zone 1 referred to lands owned by the State. Some of these antedated the Interim Agreement, and we read them all as merely repeating an established pattern. The recital hardly is acceptable as a device that is at once self-serving for Louisiana and capable of being detrimental to the lessees who surely thought they were getting, and paying for, full value. 4 We note that the conclusion we reach should entail no pressing hardship for Louisiana. Apart from the fact that Louisiana will be disgorging United States funds it has enjoyed for many years and will be doing so in depreciated dollars without interest, the United States has represented to this Court that accumulated impounded receipts attributable to state lands from "split leases" exceed the sum now claimed from Louisiana. The accounting of the split lease revenues is not yet due. See 422 U.S., at 16-17, 95 S.Ct., at 2024-2025. The United States asserts, however, that it is content to defer payment from Louisiana until the split lease impounded fund accounting is settled, and to waive the benefit of the absence of offset provisions if Louisiana does likewise. Memorandum of United States in Support of Exception, p. 40.

910

446 U.S. 238 100 S.Ct. 1610 64 L.Ed.2d 182 Ray MARSHALL, Secretary of Labor, et al., Appellants,v.JERRICO, INC. No. 79-253. Argued March 19, 1980. Decided April 28, 1980. Syllabus Under § 16(e) of the Fair Labor Standards Act (Act), sums collected as civil penalties for the unlawful employment of child labor are returned to the Employment Standards Administration (ESA) of the Department of Labor in reimbursement for the costs of determining violations and assessing penalties. An Assistant Regional Administrator determined that violations of child labor provisions of the Act had occurred at restaurants managed by appellee and assessed a fine against appellee, including an amount for willful violation. After appellee filed exceptions to the Assistant Regional Administrator's determination and assessment, a hearing was held before an Administrative Law Judge, who accepted the Assistant Regional Administrator's contention that violations had occurred, but found that the violations were not willful and reduced the total assessment accordingly. Appellee than filed suit in Federal District Court, contending that § 16(e) violated the Due Process Clause of the Fifth Amendment. The District Court granted summary judgment for appellee, holding that the reimbursement provision of § 16(e) created an impermissible risk of bias on the part of the Assistant Regional Administrator because a regional office's greater effort in uncovering violations could lead to an increased amount of penalties and a greater share of reimbursements for that office, and thus § 16(e) could distort the Assistant Regional Administrator's objectivity in assessing penalties. Held: The reimbursement provision of § 16(e) does not violate the Due Process Clause of the Fifth Amendment by creating an impermissible risk of bias in the Act's enforcement and administration. Pp. 242-252. (a) Strict due process requirements as to the neutrality of officials performing judicial or quasi-judicial functions, cf. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267, are not applicable to the determinations of the assistant regional administrator, whose functions resemble those of a prosecutor more closely than those of a judge. In an adversary system, prosecutors are permitted to be zealous in their enforcement of the law. Although traditions of prosecutorial discretion do not immunize from judicial scrutiny enforcement decisions that are contrary to law, rigid standards of neutrality cannot be the same for administrative prosecutors as for judges. Pp. 242-250. (b) It is unnecessary in this case to determine with precision what limits there may be on a financial or personal interest of one who performs a prosecutorial function, for here the influence alleged to impose bias is exceptionally remote. No governmental official stands to profit economically from vigorous enforcement of child labor provisions; there is no realistic possibility that the assistant regional administrator's judgment will be distorted by the prospect of institutional gain as a result of zealous enforcement efforts; and ESA's administration of the Act has minimized any potential for bias. On this record, the possibility that an assistant regional administrator might be tempted to devote an unusually large quantity of resources to enforcement efforts in the hope that he would ultimately obtain a higher total allocation of federal funds to his office is too remote to violate the constraints applicable to the financial or personal interest of officials charged with prosecutorial or plaintiff-like functions. Pp. 250-252. Reversed and remanded. Kenneth S. Geller, Washington, D. C., for appellants. Thomas W. Power, Washington, D. C., for appellee. Mr. Justice MARSHALL delivered the opinion of the Court. 1 Under § 16(e) of the Fair Labor Standards Act, 29 U.S.C. § 216(e), sums collected as civil penalties for the unlawful employment of child labor are returned to the Employment Standards Administration (ESA) of the Department of Labor in reimbursement for the costs of determining violations and assessing penalties. The question for decision is whether this provision violates the Due Process Clause of the Fifth Amendment by creating an impermissible risk of bias in the Act's enforcement and administration. 2 * The child labor provisions of federal law are primarily contained in § 12 of the Fair Labor Standards Act, 52 Stat. 1067, as amended, 29 U.S.C. § 212. The Secretary of Labor has designated the ESA as the agency responsible for enforcing these provisions, 36 Fed.Reg. 8755 (1971). The ESA in turn carries out its responsibilities through regional offices, and the assistant regional administrator of each office has been charged with the duty of determining violations and assessing penalties. 3 Appellee Jerrico, Inc., is a Delaware corporation that manages approximately 40 restaurants in Kentucky, Indiana, Tennessee, Georgia, and Florida. In a series of investigations from 1969 to 1975, the ESA uncovered over 150 violations of the child labor provisions at appellee's various establishments. After considering the factors designated by statute and regulations,1 the ESA Assistant Regional Administrator in the Atlanta office assessed a total fine of $103,000 in civil penalties for the various violations. That figure included a supplemental assessment of $84,500 because of his conclusion that the violations were willful. 4 Appellee filed exceptions to the determination and assessment of the Assistant Regional Administrator, and pursuant to 29 U.S.C. § 216(e), a hearing was held before an Administrative Law Judge. Witnesses included employees of appellee and representatives of the Department of Labor. The Administrative Law Judge accepted the Assistant Regional Administrator's contention that violations had occurred, concluding that the record showed "a course of violations" for which "[r]espondent's responsibility cannot be disputed." At the same time, he was persuaded by appellee's witnesses and by a review of the evidence that the violations were not willful. Accordingly, he reduced the total assessment to $18,500. 5 Appellee did not seek judicial review of the decision of the Administrative Law Judge. Instead, it brought suit in Federal District Court, challenging the civil penalty provisions of the Act on constitutional grounds and seeking declaratory and injunctive relief against their continued enforcement. Appellee accepted the determination of the Administrative Law Judge and alleged no unfairness in the proceedings before him. Nonetheless, it contended that § 16(e) of the Act violated the Due Process Clause of the Fifth Amendment by providing that civil penalties must be returned to the ESA as reimbursement for enforcement expenses and by allowing the ESA to allocate such fines to its various regional offices. According to appellee, this provision created an impermissible risk and appearance of bias by encouraging the assistant regional administrator to make unduly numerous and large assessments of civil penalties. 6 After the parties engaged in discovery with respect to the administration of § 16(e), appellee moved for summary judgment. The District Court granted the motion. It acknowledged that the Office of Administrative Law Judges was unaffected by the total amount of the civil penalties. At the same time, the court concluded that the reimbursement provision created an impermissible risk of bias on the part of the assistant regional administrator. Citing Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), and Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), the court found that because a regional office's greater effort in uncovering violations could lead to an increased amount of penalties and a greater share of reimbursements for that office, § 16(e) could distort the assistant regional administrator's objectivity in assessing penalties for violations of the child labor provisions of the Act. 7 We noted probable jurisdiction, 444 U.S. 949, 100 S.Ct. 419, 62 L.Ed.2d 318 (1979), and now reverse. II A. 8 The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process. See Carey v. Piphus, 435 U.S. 247, 259-262, 266-267, 98 S.Ct. 1042, 1043, 1050-1052, 1053, 1054, 55 L.Ed.2d 252, (1978). The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. See Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976). At the same time, it preserves both the appearance and reality of fairness, "generating the feeling, so important to a popular government, that justice has been done," Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him. 9 The requirement of neutrality has been jealously guarded by this Court. In Tumey v. Ohio, supra, the Court reversed convictions rendered by the mayor of a town when the mayor's salary was paid in part by fees and costs levied by him acting in a judicial capacity. The Court stated that the Due Process Clause would not permit any "procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused." 273 U.S., at 532, 47 S.Ct., at 444. Tumey was applied in Ward v. Village of Monroeville, supra, to invalidate a procedure by which sums produced from a mayor's court accounted for a substantial portion of municipal revenues, even though the mayor's salary was not augmented by those sums. The forbidden "possible temptation," we concluded, is also present "when the mayor's executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor's court." 409 U.S., at 60, 93 S.Ct., at 83. We have employed the same principle in a variety of settings, demonstrating the powerful and independent constitutional interest in fair adjudicative procedure.2 Indeed, "justice must satisfy the appearance of justice," Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954), and this "stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties," In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). See also Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). 10 Appellee contends that these principles compel the conclusion that the reimbursement provision of the Act violates the Due Process Clause. We conclude, however, that the strict requirements of Tumey and Ward are not applicable to the determinations of the assistant regional administrator, whose functions resemble those of a prosecutor more closely than those of a judge. The biasing influence that appellee discerns in § 16(e) is, we believe, too remote and insubstantial to violate the constitutional constraints applicable to the decisions of an administrator performing prosecutorial functions. To explain our conclusion, we turn to the relevant sections of the Act. 11 As noted above, the major portions of the federal child labor provisions appear in 29 U.S.C. § 212, which outlaws the employment in interstate commerce of "oppressive child labor," as that term is defined in 29 U.S.C. § 203(l ) and implementing regulations. These provisions demonstrate a firm federal policy of "protect[ing] the safety, health, well-being, and opportunities for schooling of youthful workers." 29 CFR § 570.101 (1979). See also H.R.Rep. No. 1452, 75th Cong., 1st Sess., 6 (1937); S.Rep. No. 884, 75th Cong., 1st Sess., 2, 6 (1937). 12 Before 1974, the Secretary of Labor enforced the child labor provisions primarily through actions for injunctive relief, see 29 U.S.C. §§ 212(b), 217, and for criminal sanctions, see 29 U.S.C. §§ 216(a), 215(a)(4). Having found such relief to be an inadequate or insufficiently flexible remedy for violations of the law, cf. H.R.Rep. No. 93-913, p. 15 (1974), U.S.Code Cong. & Admin.News, 1974, p. 2811, Congress in 1974 authorized the Secretary to assess a civil penalty not to exceed $1,000 for each violation of § 212. 29 U.S.C. § 216(e). Under this provision for the assessment of civil penalties, the Secretary's determination of the existence of a violation and of the amount of the penalty is not final if the person charged with a violation enters an exception within 15 days of receiving notice. In the event that such an exception is entered, the final determination is made in an administrative hearing conducted in accordance with the Administrative Procedure Act, 5 U.S.C. § 554. The administrative law judge "may affirm, in whole or in part, the determination by the Administrator of the occurrence of violations or . . . may find that no violations occurred, and shall order payment of a penalty in the amount originally assessed or in a lesser amount . . . or order that respondent pay no penalty, as appropriate." 29 C.F.R. § 580.32(a) (1979). He is directed to consider the same factors considered by the assistant regional administrator3 in making his original assessment. Ibid. Under the natural construction of this regulation, the administrative law judge is required to conduct a de novo review of all factual and legal issues.4 13 The provision whose constitutionality is at issue in this case is a part of 29 U.S.C. § 216(e), the civil penalty section of the Act. That provision states that civil penalties collected for violations of the child labor law "shall be applied toward reimbursement of the costs of determining the violations and assessing and collecting such penalties, in accordance with the provisions of section 9a of this title." Section 9a, 29 U.S.C. § 9a, added in 1934, provides in turn that all sums 14 "received by the Department of Labor in payment of the cost of such work shall be deposited to the credit of the appropriation of that bureau, service, office, division, or other agency of the Department of Labor which supervised such work, and may be used, in the discretion of the Secretary of Labor, and notwithstanding any other provision of law, for the ordinary expenses of such agency and/or to secure the special services of persons who are neither officers nor employees of the United States."5 15 The record developed in the District Court permits a detailed description of the administration of the reimbursement provision in the years 1976, 1977, and 1978. It is plain that no official's salary is affected by the levels of the penalties. In all three years the sums collected as child labor penalties amounted to substantially less than 1% of the ESA's budget.6 And in each of those years, the ESA did not spend the full amount appropriated to it, and the sums that were not spent were returned to the Treasury. The amounts returned to the Treasury in that fashion substantially exceeded the sums collected under § 16(e) in all three years.7 The challenged provisions have not, therefore, resulted in any increase in the funds available to the ESA over the amount appropriated by Congress. 16 Civil penalties for child labor violations are allocated by the national office of the ESA, subject to the approval of the Secretary of Labor. In 1976, the sums collected were allocated to and retained by the ESA national office; in 1977, they were allocated to the national office, to the Office of the Solicitor of Labor, and to the various regional offices in proportion to the amounts expended on enforcement of the child labor provisions;8 and in 1978, the penalties were held in the Treasury. Civil penalties have never been allotted to the regional offices on the basis of the total amount of penalties collected by particular offices. 17 The District Court concluded that in these circumstances the challenged provision violated the Due Process Clause under the principles set forth in Tumey, and Ward. It noted that, as the 1977 practice demonstrated, the ESA has discretion to return sums collected as civil penalties to the regional offices in proportion to the amounts expended on enforcement efforts. Increased enforcement costs could thus lead to a larger share of reimbursements. According to the court, an assistant regional administrator would therefore be inclined to maximize the total expenditures on enforcement of the child labor provisions of the Act, and those increased expenditures would result in an increase in the number and amount of penalties assessed. The court concluded that this possibility created an unconstitutional risk of bias in the assistant regional administrator's enforcement decisions. We disagree. 18 The assistant regional administrator simply cannot be equated with the kind of decisionmakers to which the principles of Tumey and Ward have been held applicable. He is not a judge. He performs no judicial or quasi-judicial functions. He hears no witnesses and rules on no disputed factual or legal questions. The function of assessing a violation is akin to that of a prosecutor or civil plaintiff. If the employer excepts to a penalty—as he has a statutory right to do—he is entitled to a de novo hearing before an administrative law judge.9 In that hearing the assistant regional administrator acts as the complaining party and bears the burden of proof on contested issues. 29 CFR § 580.21(a) (1979). Indeed, the Secretary's regulations state that the notice of penalty assessment and the employer's exception "shall, respectively be given the effect of a complaint and answer thereto for purposes of the administrative proceeding." 29 CFR § 580.3(b) (1979). It is the administrative law judge, not the assistant regional administrator, who performs the function of adjudicating child labor violations. As the District Court found, the reimbursement provision of § 16(e) is inapplicable to the Office of Administrative Law Judges.10 19 The rigid requirements of Tumey and Ward, designed for officials performing judicial or quasi-judicial functions, are not applicable to those acting in a prosecutorial or plaintiff-like capacity. Our legal system has traditionally accorded wide discretion to criminal prosecutors in the enforcement process, see Linda R. S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 793 (1973), and similar considerations have been found applicable to administrative prosecutors as well, see Moog Industries, Inc. v. FTC, 355 U.S. 411, 414, 78 S.Ct. 377, 380, 2 L.Ed.2d 370 (1958); Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842, (1967). Prosecutors need not be entirely "neutral and detached," cf. Ward v. Village of Monroeville, 409 U.S., at 62, 93 S.Ct., at 84. In an adversary system, they are necessarily permitted to be zealous in their enforcement of the law. The constitutional interests in accurate finding of facts and application of law, and in preserving a fair and open process for decision, are not to the same degree implicated if it is the prosecutor, and not the judge, who is offered an incentive for securing civil penalties. The distinction between judicial and nonjudicial officers was explicitly made in Tumey, 273 U.S., at 535, 47 S.Ct., at 445, where the Court noted that a state legislature "may, and often ought to, stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the state and the people." See also Hortonville School Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 495, 96 S.Ct. 2308, 2315, 49 L.Ed.2d 1 (1976) 20 We do not suggest, and appellants do not contend, that the Due Process Clause imposes no limits on the partisanship of administrative prosecutors. Prosecutors are also public officials; they too must serve the public interest. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). In appropriate circumstances the Court has made clear that traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which the enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law. See Dunlop v. Bachowski, 421 U.S. 560, 567, n. 7, 568-574, 95 S.Ct. 1851, 1858, n. 7, 1858-1861, 44 L.Ed.2d 377 (1975); Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147 (1939).11 Moreover, the decision to enforce—or not to enforce—may itself result in significant burdens on a defendant or a statutory beneficiary, even if he is ultimately vindicated in an adjudication. Cf. 2 K. Davis Administrative Law Treatise 215-256 (2d ed. 1979). A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions. See Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978); cf. 28 U.S.C. § 528 (1976 ed., Supp. III) (disqualifying federal prosecutor from participating in litigation in which he has a personal interest). But the strict requirements of neutrality cannot be the same for administrative prosecutors as for judges, whose duty it is to make the final decision and whose impartiality serves as the ultimate guarantee of a fair and meaningful proceeding in our constitutional regime. B 21 In this case, we need not say with precision what limits there may be on a financial or personal interest of one who performs a prosecutorial function,12 for here the influence alleged to impose bias is exceptionally remote. No governmental official stands to profit economically from vigorous enforcement of the child labor provisions of the Act. The salary of the assistant regional administrator is fixed by law. 5 U.S.C. § 5332 (1976 ed. and Supp. III). The pressures relied on in such cases as Tumey v. Ohio, supra; Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973); and Connally v. Georgia, 429 U.S. 245, 250, 97 S.Ct. 546, 548, 50 L.Ed.2d 444 (1977) (per curiam ), are entirely absent here. 22 Nor is there a realistic possibility that the assistant regional administrator's judgment will be distorted by the prospect of institutional gain as a result of zealous enforcement efforts. As we have noted, the civil penalties collected under § 16(e) represent substantially less that 1% of the budget of the ESA.13 In each of the relevant years, the amount of the ESA's budget that was returned to the Treasury was substantially greater than the amount collected as civil penalties. Unlike in Ward and Tumey, it is plain that the enforcing agent is in no sense financially dependent on the maintenance of a high level of penalties. Furthermore, since it is the national office of the ESA, and not any assistant regional administrator, that decides how to allocate civil penalties, such administrators have no assurance that the penalties they assess will be returned to their offices at all. See Dugan v. Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928). 23 Moreover, the ESA's administration of the Act has minimized any potential for bias. In the only year in which the ESA elected to allocate part of the civil penalties to the regional offices, it did so in proportion to the expenses incurred in investigating and prosecuting child labor violations, not on the basis of the amounts of penalties collected. Thus, even if an assistant regional administrator were to act on the assumption that civil penalties would be returned to his office in any given year, his decision to assess an unjustifiable large penalty in a particular case would be of no benefit to his office, since that decision would not produce an increase in the level of expenses. 24 The District Court's conclusion that the reimbursement provision violated the Due Process Clause was evidently premised on its perception that an assistant regional administrator might be tempted to devote an unusually large quantity of resources to enforcement efforts in the hope that he would ultimately obtain a higher total allocation of federal funds to his office. This increase in enforcement effort, the court suggested, might incline the assistant regional administrator to assess an unjustified number of penalties, and to make those penalties unduly high. But in light of the factors discussed above, it is clear that this possibility is too remote to violate the constraints applicable to the financial or personal interest of officials charged with prosecutorial or plaintiff-like functions.14 In order to produce the predicted result, the ESA would be required to decide to allocate civil penalties to regional offices; the sums allocated to the particular regional office would have to exceed any amount of that office's budget returned to the Treasury at the end of the fiscal year; the assistant regional administrator would have to receive authorization from his superiors to expend additional funds to increase his enforcement expenditures to the desired level; the increased expenditures would have to result in an increase in penalties; and the administrative law judge and reviewing courts would have to accept or ratify the assistant regional administrator's assessments. "[U]nder a realistic appraisal of psychological tendencies and human weakness," Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975), it is exceedingly improbable that the assistant regional administrator's enforcement decisions would be distorted by some expectation that all of these contingencies would simultaneously come to fruition. We are thus unable to accept appellee's contention that, on this record and as presently administered, the reimbursement provision violates standards of procedural fairness embodied in the Due Process Clause. 25 The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. 26 It is so ordered. 1 Those factors include "any history of prior violations; any evidence of willfulness or failure to take reasonable precautions to avoid violations; the number of minors illegally employed; the age of the minors so employed and records of the required proof of age; the occupations in which the minors were so employed; exposure of such minors to hazards and any resultant injury to such minors; the duration of such illegal employment; and, as appropriate, the hours of the day in which it occurred and whether such employment was during or outside school hours." 29 CFR § 579.5(c) (1979). 2 For example, we have invalidated a system in which justices of the peace were paid for issuance but not for nonissuance of search warrants, Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977) (per curiam); prohibited the trial of a defendant before a judge who has previously held the defendant in contempt, Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 523 (1971); forbidden a state administrative board consisting of optometrists in private practice from hearing charges filed against licensed optometrists competing with board members, Gibson v. Berryhill, 411 U.S. 564, 578-579, 93 S.Ct. 1689, 1697-1698, 36 L.Ed.2d 488 (1973); and prohibited a parole officer from making the determination whether reasonable grounds exist for the revocation of parole, Morrissey v. Brewer, 408 U.S. 471, 485-486, 92 S.Ct. 2593, 2602-2603, 33 L.Ed.2d 484 (1972). 3 See n. 1, supra. 4 See n. 9 infra, and accompanying text. 5 The section was originally designed "[t]o authorize the Department of Labor to make special statistical studies upon payment of the cost thereof, and for other purposes." See 48 Stat. 582; S.Rep. No. 322, 73d Cong., 2d Sess. (1934). 6 In 1976, the ESA collected about $151,000 in child labor penalties; in 1977, $650,000; and in 1978, $592,000. By comparison, $87,407,000 was appropriated to the ESA in 1976; $98,992,000 in 1977; and $119,632,000 in 1978. See Budget of the United States Government, Fiscal Year 1980—Appendix 652; Budget of the United States Government, Fiscal Year 1979—Appendix 623-624; Budget of the United States Government, Fiscal Year 1978 Appendix 510. 7 The record indicates that, in 1976, the ESA returned $981,000 to the Treasury; $870,000 was returned in 1977; and $4,600,000 in 1978. 8 In that year a total of $559,800 was allotted including $194,800 to the national office. The Chicago office received $44,300, the highest allotment of any regional office; the Denver office received the lowest, $4,900. 9 Appellee claims that the hearing before the administrative law judge is not truly de novo because the judge has the authority only to determine the existence of the violation, not to assess the reasonableness of the penalty. We are unable to discern any such limitation on the administrative law judge's authority. Under federal regulations, the administrative law judge is expressly empowered to review the amount of the penalty and is required to consider precisely those factors considered by the assistant regional administrator in making his assessment. See 29 CFR § 579.5 (1979). Indeed, in this very case the Administrative Law Judge carefully reviewed the Assistant Regional Administrator's assessment and reduced it by over 80%. Appellee correctly points out that in Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267, (1972), we held that the availability of a trial de novo before an unbiased judge did not remove the constitutional infirmity in an original trial before one whose impartiality was impaired. A litigant, we said, "is entitled to a neutral and detached judge in the first instance." Id., at 61-62, 93 S.Ct., at 84. Ward does not aid appellee in this case, however, for the administrative law judge presides over the initial adjudication. 10 Appellee errs in suggesting that the Office of Administrative Law Judges is also entitled to reimbursement under § 16(e). When read in conjunction with 29 U.S.C. § 9(a), that section allows reimbursement to offices that "supervised [the] work" of "determining the violations and assessing and collecting [the] penalties." The Office of Administrative Law Judges does not "supervise" that work. Indeed, the Administrative Procedure Act expressly forbids such supervision. 5 U.S.C. § 554(d). The Office of Administrative Law Judges maintains an administrative section within the Department of Labor entirely separate from that of the supervising body, the ESA, and the Office has a separate budget. 11 Cf., e. g., Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971); Medical Comm. for Human Rights v. SEC, 139 U.S.App.D.C. 226, 432 F.2d 659 (1970), vacated as moot, 404 U.S. 403 (1972); Perez v. Boston Housing Authority, 379 Mass. 703, 400 N.E.2d 1231, 1247, 1252-1253 (1980). See Stewart, The Reformation of American Administrative Law, 88 Harv.L.Rev. 1667, 1752-1756 (1975); Jaffe, The Individual Right to Initiate Administrative Process, 25 Iowa L.Rev. 485 (1940). 12 In particular, we need not say whether different considerations might be held to apply if the alleged biasing influence contributed to prosecutions against particular persons, rather than to a general zealousness in the enforcement process. 13 Even if ESA received a considerable amount in civil penalties in a particular year, of course, it is possible that Congress would decide to appropriate a corresponding lower amount from the treasury. 14 We need not, of course, say whether the alleged biasing influence is to remote to raise constitutional objections even under the standards of Ward and Tumey.

34

446 U.S. 318 100 S.Ct. 1698 64 L.Ed.2d 319 GENERAL TELEPHONE COMPANY OF THE NORTHWEST, INC., et al., Petitioners,v.EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al. No. 79-488. Argued March 25, 26, 1980. Decided May 12, 1980. Syllabus * Section 706(a) of Title VII of the Civil Rights Act of 1964 empowers the Equal Employment Opportunity Commission (EEOC) "to prevent any person from engaging in any unlawful practice" as set forth in Title VII. Section 706(f)(1) authorizes the EEOC, after unlawful employment practice charges against a private employer are filed with it and it is unable to secure a conciliation agreement, to bring a civil action against the employer. And § 706(g), in addition to providing for injunctive relief, provides for reinstatement or hiring of aggrieved employees with or without backpay. On the basis of sex discrimination charges filed by four employees of petitioner employer, the EEOC brought suit in Federal District Court under § 706(f)(1), alleging discrimination against female employees in four States and seeking injunctive relief and backpay for the women affected by the challenged practices. The EEOC did not seek class certification pursuant to Federal Rule of Civil Procedure 23, and petitioner employer moved to dismiss the class action aspects of the complaint. The District Court denied the motion and the Court of Appeals, on interlocutory appealed, affirmed. Held : The EEOC may seek classwide relief under § 706(f)(1) without being certified as the class representative under Rule 23. Pp. 323-325. (a) The language of §§ 706(a), (f)(1), and (g) clearly authorizes the procedure that the EEOC followed in this case. Pp. 323-325. (b) This understanding of the statute is supported by the purpose of the 1972 amendments to Title VII of securing more effective enforcement of Title VII by adding § 706(f)(1) to authorize a civil enforcement suit by the EEOC as a supplement to the pre-existing private action. Under § 706(f)(1), Congress sought to implement the public interest as well as to bring about more effective enforcement of private rights. The private action rights under § 706(f)(1) suggest that the EEOC is not merely a proxy for the victims of discrimination and that the EEOC's enforcement suits should not be considered representative actions subject to Rule 23. When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination. Pp. 325-326. (c) Prior to 1972, the only civil actions authorized other than private lawsuits were actions by the Attorney General upon reasonable cause to suspect "a pattern or practice" of discrimination, and such actions were brought in the name of the United States- not as a representative of the persons aggrieved- without obtaining certification under Rule 23 even though specific relief was awarded to individuals not parties to the suit. The 1972 amendments transferred the Attorney General's authority to bring "pattern or practice" suits to the EEOC, and Congress intended the EEOC to proceed in the same manner. Pp. 327-329. (d) Forcing EEOC civil actions into the Rule 23 model would in many cases distort the Rule as it is commonly interpreted and in others foreclose enforcement actions not satisfying prevailing Rule 23 standards as to numerosity, commonality, typicality, and adequacy of representation but seemingly authorized by § 706(f)(1). The undesirability of doing either supports the conclusion that the procedural requirements of the Rule do not apply. Pp. 329-331. (e) Departure from the statutory design is not warranted on the theory that Rule 23 should be invoked in order to secure a judgment in the EEOC's suit that will be binding upon all individuals with similar grievances in the class or subclasses that might be certified. It would not be consistent with the remedial purpose of the statutes to bind all "class" members with discrimination grievances against an employer by the relief obtained under an EEOC judgment or settlement against the employer, especially in view of the possible differences between the public and private interests involved. However, the courts are not powerless to prevent undue hardship to the defendant, and where the EEOC has prevailed in its action, the court may reasonably require any individual who claims under its judgment to relinquish his right to bring a separate private action. Pp. 332-333. 599 F.2d 322, affirmed. Lawrence G. Wallace, Washington, D.C., for respondents. James R. Dickens, Seattle, Wash., for petitioners. Mr. Justice WHITE delivered the opinion of the Court. 1 The issue in this case is whether the Equal Employment Opportunity Commission (EEOC) may seek classwide relief under § 706(f)(1) of Title VII of the Civil Rights Act of 1964 (Title VII) without being certified as the class representative under Rule 23 of the Federal Rules of Civil Procedure. The Court of Appeals for the Ninth Circuit held that certification was not required. 599 F.2d 322 (1979). Because this is a recurring issue on which the federal courts are divided,1 we granted certiorari, 444 U.S. 989, 100 S.Ct. 518, 62 L.Ed.2d 418 (1979). We affirm the judgment. 2 * Four employees of General Telephone Company of the Northwest, Inc. (General Telephone), filed charges with the EEOC complaining of sex discrimination in employment. After investigation, the EEOC found reasonable cause to suspect discrimination against women, and in April 1977 brought suit in the United States District Court for the Western District of Washington under § 706(f)(1) of Title VII, as amended, § 4, 86 Stat. 105, 42 U.S.C. § 2000e-5 (f)(1).2 The EEOC named as defendants General Telephone and its subsidiary, West Coast Telephone Company of California, Inc. (hereinafter collectively referred to as General Telephone), as well as the certified bargaining agent, Local Union No. 89, International Brotherhood of Electrical Workers. The complaint alleged discrimination against female employees in General Telephone's facilities in the States of California, Idaho, Montana, and Oregon, in the form of restrictions on maternity leave, access to craft jobs, and promotion to managerial positions; it sought injunctive relief and backpay for the women affected by the challenged practices. 3 The complaint did not mention Federal Rule of Civil Procedure 23,3 and the EEOC did not seek class certification pursuant to that Rule. In August 1977, the EEOC moved pursuant to Federal Rule of Civil Procedure 42(b) "for an order bifurcating the issue of class liability from the issue of individual damages." The District Court referred the motion to a Magistrate, see Title VII, § 706(f)(5), and General Telephone moved "for an order dismissing the class action aspects" of the complaint.4 4 The Magistrate concluded that the EEOC was not required to comply with Rule 23 and recommended that the motion be denied. The District Court adopted the recommendation, denied the motion to dismiss, and then certified the issue for interlocutory appeal to the Ninth Circuit. The Court of Appeals accepted the appeal, see 28 U.S.C. § 1292(b), and affirmed the District Court's ruling. II 5 We agree with the Court of Appeals that Rule 23 is not applicable to an enforcement action brought by the EEOC in its own name and pursuant to its authority under § 706 to prevent unlawful employment practices.5 We rely on the language of Title VII, the legislative intent underlying the 1972 amendments to Title VII, and the enforcement procedures under Title VII prior to the amendments. 6 Title VII protects all employees of and applicants for employment with a covered employer, employment agency, labor organization, or training program against discrimination based on race, color, religion, sex, or national origin. Section 706(a) empowers the EEOC "to prevent any person from engaging in any unlawful . . . practice" as set forth in the Title. Section 706(f)(1) specifically authorizes the EEOC to bring a civil action against any respondent not a governmental entity upon failure to secure an acceptable conciliation agreement,6 the purpose of the action being to terminate unlawful practices and to secure appropriate relief, including "reinstatement or hiring . . . , with or without back pay," for the victims of the discrimination. See § 706(g). 7 Title VII thus itself authorizes the procedure that the EEOC followed in this case. Upon finding reasonable cause to believe that General Telephone had discriminated against female employees, the EEOC filed suit seeking a permanent injunction against the discriminatory practices, remedial action to eradicate the effect of past discrimination, and "make whole" backpay, with interest, for persons adversely affected by the unlawful practices. Given the clear purpose of Title VII, the EEOC's jurisdiction over enforcement, and the remedies available, the EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals. Its authority to bring such actions is in no way dependent upon Rule 23, and the Rule has no application to a § 706 suit. 8 Of course, Title VII defendants do not welcome the prospect of backpay liability; but the law provides for such liability and the EEOC's authority to sue for it. Moreover, the EEOC here requested relief only on behalf of "those persons adversely affected" and "in an amount to be proved at trial." App. 11. There is no claim or suggestion of unjustified, windfall backpay awards. That backpay relief is authorized is no basis for imposing the Rule 23 framework in an EEOC enforcement action. We do no more than follow a straightforward reading of the statute, which seems to us to authorize the EEOC to sue in its own name to enforce federal law by obtaining appropriate relief for those persons injured by discriminatory practices forbidden by the Act. B 9 This understanding of the statute is supported by the purpose of the 1972 amendments of providing the EEOC with enforcement authority. The purpose of the amendments, plainly enough, was to secure more effective enforcement of Title VII. As Title VII was originally enacted as part of the Civil Rights Act of 1964, the EEOC's role in eliminating unlawful employment practices was limited to "informal methods of conference, conciliation, and persuasion." Civil actions for enforcement upon the EEOC's inability to secure voluntary compliance could be filed only by the aggrieved person. § 706(e), 78 Stat. 260. Congress became convinced, however, that the "failure to grant the EEOC meaningful enforcement powers has proven to be a major flaw in the operation of Title VII."7 S.Rep. No. 92-415, p. 4 (1971). The 1972 amendments to § 706 accordingly expanded the EEOC's enforcement powers by authorizing the EEOC to bring a civil action in federal district court against private employers reasonably suspected of violating Title VII. In so doing, Congress sought to implement the public interest as well as to bring about more effective enforcement of private rights. The amendments did not transfer all private enforcement to the EEOC and assign to that agency exclusively the task of protecting private interests. The EEOC's civil suit was intended to supplement, not replace, the private action. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 45, 94 S.Ct. 1011, 1018, 39 L.Ed.2d 147 (1974). The EEOC was to bear the primary burden of litigation, but the private action previously available under § 706 was not superseded. Under § 706(f)(1), the aggrieved person may bring his own action at the expiration of the 180-day period of exclusive EEOC administrative jurisdiction if the agency has failed to move the case along to the party's satisfaction, has reached a determination not to sue, or has reached a conciliation or settlement agreement with the respondent that the party finds unsatisfactory. The aggrieved person may also intervene in the EEOC's enforcement action. These private-action rights suggest that the EEOC is not merely a proxy for the victims of discrimination and that the EEOC's enforcement suits should not be considered representative actions subject to Rule 23. Although the EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay or benefits denied, on behalf of discrimination victims, the agency is guided by "the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement." 118 Cong.Rec. 4941 (1972). When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.8 C 10 Prior to 1972, the only civil actions authorized other than private lawsuits were actions by the Attorney General upon reasonable cause to suspect "a pattern or practice" of discrimination. These actions did not depend upon the filing of a charge with the EEOC; nor were they designed merely to advance the personal interest of any particular aggrieved person. Prior to 1972, the Department of Justice filed numerous § 707 pattern-or-practice suits. 118 Cong.Rec. 4080 (1972) (remarks of Sen. Williams). In none was it ever suggested that the Attorney General sued in a representative capacity or that his enforcement suit must comply with the requirements of Rule 23;9 and this was true even though specific relief was awarded to individuals not parties to the suit.10 11 The 1972 amendments, in addition to providing for a § 706 suit by the EEOC pursuant to a charge filed by a private party, transferred to the EEOC the Attorney General's authority to bring pattern-or-practice suits on his own motion. In discussing the transfer,11 Senator Hruska described § 707 actions as "in the nature of class actions." 118 Cong.Rec. 4080 (1972). Senator Williams then noted that, upon the transfer, "[t]here will be no difference between the cases that the Attorney General can bring under section 707 as a 'pattern or practice' charge and those which the [EEOC] will be able to bring." Id., at 4081. Senator Javits agreed with both Senators: "The EEOC . . . has the authority to institute exactly the same actions that the Department of Justice does under pattern or practice."12 Senator Javits further noted that "if [the EEOC] proceeds by suit, then it can proceed by class suit. If it proceeds by class suit, it is in the position of doing exactly what the Department of Justice does in pattern and practice suits. . . . [T]he power to sue . . . fully qualifies the [EEOC] to take precisely the action now taken by the Department of Justice." Id., at 4081-4082. As we have said, the Department of Justice brought its suits in the name of the United States and without obtaining certification under Rule 23—it did not sue as a representative of the persons aggrieved—and we must assume Congress' familiarity with the procedure. It is clear that with the 1972 amendments Congress intended the EEOC to proceed in the same manner; and thus, given the context, it is similarly clear that the references in debate to "class" suits referred to the availability of relief and not the procedure that would be applicable in such actions.13 III 12 It is also apparent that forcing EEOC civil actions into the Rule 23 model would in many cases distort the Rule as it is commonly interpreted and in others foreclose enforcement actions not satisfying prevailing Rule 23 standards but seemingly authorized by § 706(f)(1). The undesirability of doing either supports our conclusion that the procedural requirements of the Rule do not apply. A. 13 Rule 23(a), see n. 3, supra, imposes the prerequisites of numerosity, commonality, typicality, and adequacy of representation. When considered in the light of these requirements, it is clear that the Rule was not designed to apply to EEOC actions brought in its own name for the enforcement of federal law. Some of the obvious and more severe problems are worth noting. 14 The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations. Title VII, however, applies to employers with as few as 15 employees. When judged by the size of the putative class in various cases in which certification has been denied, this minimum would be too small to meet the numerosity requirement.14 In such cases, applying Rule 23 would require the EEOC to join all aggrieved parties despite its statutory authority to proceed solely in its own name. 15 The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiff's claims. If Rule 23 were applicable to EEOC enforcement actions, it would seem that the Title VII counterpart to the Rule 23 named plaintiff would be the charging party, with the EEOC serving in the charging party's stead as the representative of the class. Yet the Courts of Appeals have held that EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable. See, e. g., EEOC v. General Electric Co., 532 F.2d 359, 366 (CA4 1976); EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 (CA6 1975). The latter approach is far more consistent with the EEOC's role in the enforcement of Title VII than is imposing the strictures of Rule 23, which would limit the EEOC action to claims typified by those of the charging party. 16 We note finally that the adequate-representation requirement is typically construed to foreclose the class action where there is a conflict of interest between the named plaintiff and the members of the putative class. In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes. But unlike the Rule 23 class representative, the EEOC is authorized to proceed in a unified action and to obtain the most satisfactory overall relief even though competing interests are involved and particular groups may appear to be disadvantaged. The individual victim is given his right to intervene for this very reason. The EEOC exists to advance the public interest in preventing and remedying employment discrimination, and it does so in part by making the hard choices where conflicts of interest exist. We are reluctant, absent clear congressional guidance, to subject § 706(f)(1) actions to requirements that might disable the enforcement agency from advancing the public interest in the manner and to the extent contemplated by the statute. B 17 We observe that General Telephone does not urge application of Rule 23 to EEOC enforcement actions in the expectation or hope that the agency could not comply and would be forced to drop its action against General Telephone. Indeed, petitioners urge that the EEOC, in proper cases, would be able to meet the Rule 23 requirements. Brief for Petitioners 16-22. As we understand, petitioners' objective in seeking to invoke Rule 23 is aimed at securing a judgment in the EEOC's suit that will be binding upon all individuals with similar grievances in the class or subclasses that might be certified. We are sensitive to the importance of the res judicata aspects of Rule 23 judgments, but we are not free to depart from what we believe the statutory design to be. 18 We have noted in a related context the interface between employment discrimination remedies under a collective-bargaining agreement and those under Title VII. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), held that the employee did not forfeit Title VII relief by invoking the grievance and arbitration procedures under the collective-bargaining contract. We noted that "federal courts have been assigned plenary powers to secure compliance with Title VII." Id., at 45, 94 S.Ct., at 1018. Similarly, the courts retain remedial powers under Title VII despite a finding by the EEOC of no reasonable cause to believe that Title VII has been violated. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-799, 93 S.Ct. 1817, 1822-1823, 36 L.Ed.2d 668 (1973). We have also stressed the strong congressional intent to provide "make whole" relief to Title VII claimants: " 'The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. . . .' 118 Cong.Rec. 7168 (1972)." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975). 19 The 1972 amendments retained the private right of action as "an essential means of obtaining judicial enforcement of Title VII," Alexander v. Gardner-Denver Co., supra, 415 U.S., at 45, 94 S.Ct., at 1018, while also giving the EEOC broad enforcement powers. In light of the "general intent to accord parallel or overlapping remedies against discrimination," 415 U.S., at 47, 94 S.Ct., at 1019, we are unconvinced that it would be consistent with the remedial purpose of the statutes to bind all "class" members with discrimination grievances against an employer by the relief obtained under an EEOC judgment or settlement against the employer. This is especially true given the possible differences between the public and private interests involved. Cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977). 20 The courts, however, are not powerless to prevent undue hardship to the defendant and should perform accordingly. The employer may, by discovery and other pretrial proceedings, determine the nature and extent of the claims that the EEOC intends to pursue against it. Here, as we have noted, the EEOC moved to try initially the issue of liability, not to avoid proving individual claims, but merely to postpone such proof. It also goes without saying that the courts can and should preclude double recovery by an individual. Cf. Alexander v. Gardner-Denver Co., supra, at 51, n. 14, 94 S.Ct., at 1021. Also, where the EEOC has prevailed in its action, the court may reasonably require any individual who claims under its judgment to relinquish his right to bring a separate private action.15 The Title VII remedy is an equitable one; a court of equity should adjust the relief accordingly. IV 21 We hold, therefore, that the EEOC may maintain its § 706 civil actions for the enforcement of Title VII and may seek specific relief for a group of aggrieved individuals without first obtaining class certification pursuant to Federal Rule of Civil Procedure 23.16 The judgment of the Ninth Circuit is accordingly. 22 Affirmed. 23 THE CHIEF JUSTICE, Mr. Justice POWELL, Mr. Justice REHNQUIST, and Mr. Justice STEVENS, for the reasons that are well stated by the Court of Appeals for the Fifth Circuit in EEOC v. D. H. Holmes Co., Ltd., 556 F.2d 787 (1977), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978), would reverse the judgment in this case. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 The Fifth Circuit previously addressed this same issue and held that certification was required. EEOC v. D. H. Holmes Co., Ltd., 556 F.2d 787 (1977), cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978). The District Courts have decided the issue both ways. 2 Section 706(f)(1) provides in pertinent part: "If within thirty days after a charge is filed with the Commission . . . , the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. . . . The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission. . . . If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d), whichever is later, the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice." 3 Rule 23 provides in pertinent part: "(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. "(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: "(1) the prosecution of separate actions by or against individual members of the class would create a risk of "(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or "(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or "(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or "(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action." 4 Local Union No. 89, International Brotherhood of Electrical Workers, did not join in this motion. Discussions were underway between the union and the EEOC to resolve the allegations in the complaint against the union. The union also did not participate in the appeal to the Ninth Circuit following the denial of the motion to dismiss. On December 18, 1978, the District Court entered a consent decree against the union; General Telephone's cross-claim for judgment against the union if General Telephone is found liable on the sex discrimination claims is still pending. The union also did not join in General Telephone's petition for certiorari and is, therefore, a respondent in this Court. See this Court's Rule 21(4). 5 Petitioners characterize this action as a "class action"; the EEOC characterizes it as an action "affecting a class of individuals." We need not choose between these characterizations. The issue is whether an action, however it is styled, brought by a Government agency to enforce the federal law with whose enforcement the agency is charged is subject to the requirements of Rule 23. 6 The Attorney General is authorized to bring suit against a governmental entity. 7 The Senate Report on the amendments notes: "The most striking deficiency of the 1964 Act is that the EEOC does not have the authority to issue judicially enforceable orders to back up its findings of discrimination. . . . "As a consequence, unless the Department of Justice concludes that a pattern or practice of resistance to Title VII is involved, the burden of obtaining enforceable relief rests upon each individual victim of discrimination, who must go into court as a private party, with the delay and expense that entails, in order to secure the rights promised him under the law." S.Rep. No. 92-415, p. 4 (1971). The Senate Committee contemplated EEOC enforcement through an administrative proceeding followed by a cease-and-desist order with review in the appropriate United States court of appeals. Although a floor amendment changed the procedure to a civil suit in the district court, the policy remained the same. 8 Cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368, 97 S.Ct. 2447, 2455, 53 L.Ed.2d 402 (1977) ("[U]nder the procedural structure created by the 1972 amendments, the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties; it is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes, if possible, in an informal, noncoercive fashion"). Cf. also Porter v. Warner Holding Co., 328 U.S. 395, 397-398, 66 S.Ct. 1086, 1088-1089, 90 L.Ed. 1332 (1946) (The Price Administrator "invoke[s] the jurisdiction of the District Court to enjoin acts and practices made illegal by the [Emergency Price Control Act of 1942] and to enforce compliance with the Act. .. . [S]ince the public interest is involved in a proceeding of this nature, [the District Court's] equitable powers assume an even broader and more flexible character than when only a private controversy is at stake"). 9 Nor has it been so suggested in § 707 suits brought since 1972. In fact, the only Court of Appeals to hold that the EEOC must comply with Rule 23 in its § 706 actions has intimated that the procedural requirements would not apply in a § 707 action. The Fifth Circuit, in EEOC v. D. H. Holmes Co., although imposing the Rule 23 strictures on § 706 actions, noted "emphatically that this is not a situation in which application of procedural rules will thwart any substantive right whatsoever. "If, for any reason, EEOC is not certified below but still believes a pattern or practice of discrimination exists in the Holmes Company, its recourse is to file a suit under § 707 . . . ." 556 F.2d, at 792, n. 8. 10 See, e. g., United States v. Chesapeake & O. R. Co., 471 F.2d 582, 589-590 (CA4 1972) (constructive seniority), cert. denied, sub nom. Railroad Trainmen v. United States, 411 U.S. 939, 93 S.Ct. 1893, 36 L.Ed.2d 401 (1973); United States v. St. Louis-S. F. R. Co., 464 F.2d 301, 309-311 (CA8 1972) (en banc) (preferential hiring and constructive seniority), cert. denied, sub nom. Transportation Union v. United States, 409 U.S. 1107, 93 S.Ct. 900, 34 L.Ed.2d 687, 409 U.S. 1116, 93 S.Ct. 913, 34 L.Ed.2d 700 (1973); United States v. Ironworkers Local 86, 443 F.2d 544, 548, 552-554 (CA9) (preferential hiring), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). Since 1972, backpay has also been awarded in pattern-or-practice suits, and without suggestion that Rule 23 is implicated. E. g., EEOC v. Detroit Edison Co., 515 F.2d 301, 314-315 (CA6 1975); United States v. Georgia Power Co., 474 F.2d 906, 919-920 (CA5 1973); cf. United States v. N. L. Industries, Inc., 479 F.2d 354, 378-380 (CA8 1973). And we see nothing to indicate that prior to 1972, in cases where backpay was requested and denied, the result rested on the ground that the Government could not obtain individual relief in its enforcement action without compliance with Rule 23. See, e. g., United States v. St. Louis-S. F. R. Co., supra, at 311; United States v. Hayes Int'l Corp., 456 F.2d 112, 121 (CA5 1972). 11 The legislative debate at this point focused on whether and when to make the transfer. The issue arose in the wake of the decision the day before to empower the EEOC to proceed by civil action and not cease-and-desist order. As finally agreed upon, the transfer was to occur two years after the effective date of the amendments. 12 Senator Javits goes on here to note that "[t]hese are essentially class actions, and if they can sue for an individual claimant, then they can sue for a group of claimants." Given its juxtaposition between the discussion of the Department of Justice's pattern-or-practice actions and the EEOC's newly granted ability to sue, it is unclear whether the Senator's characterization here as "class actions" referred to § 707 or § 706. 13 Petitioners rely heavily on the statement by Senator Javits immediately following the quotation set out in n. 12, supra, that "this is provided for by the rules of civil procedure in the Federal courts." The Senator then elaborated: "I have referred to the rules of civil procedure. I now refer specifically to rule 23 of those rules, which is entitled Class Actions and which give[s] the opportunity to engage in the Federal Court in class actions by properly suing parties. We ourselves have given permission to the EEOC to be a properly suing party." 118 Cong.Rec. 4082 (1972). Again, given the context, the point that emerges most clearly is that the Senator's comments merely compare the effect of the amendments to § 706 with the Rule 23 procedure; the comments were not intended to impose the requirements of the Rule on the § 706 action. Indeed, the idea that the EEOC's enforcement suits were to be subject to the full range of Rule 23 requirements is completely inconsistent with the Senator's own comparisons, noted in text, between the EEOC's authority under § 706 as amended and the authority of the Department of Justice under the original version of § 707. 14 See, e. g., Monarch Asphalt Sales Co. v. Wilshire Oil Co. of Texas, 511 F.2d 1073, 1077 (CA10 1975) (37 class plaintiffs); Peterson v. Albert M. Bender Co., 75 F.R.D. 661, 667 (ND Cal.1977) (35-45); Murray v. Norberg, 423 F.Supp. 795, 798 (RI 1976) (fewer than 20); Chmieleski v. City Products Corp., 71 F.R.D. 118, 150-151 (WD Mo.1976) (22); Lopez v. Jackson County Bd. of Supervisors, 375 F.Supp. 1194, 1196-1197 (SD Miss.1974) (16); Moreland v. Rucker Pharmacal Co., 63 F.R.D. 611, 613-614 (WD La.1974) (26); Anderson v. Home Style Stores, Inc., 58 F.R.D. 125, 130-131 (ED Pa.1972) (18). 15 An acceptance of the benefits under an EEOC-negotiated settlement could be drafted to provide for a similar relinquishment. 16 We by no means suggest that the Federal Rules generally are inapplicable to the EEOC's § 706 actions. Title VII itself refers to Rule 53, see § 706(f)(5), and the Court itself has discussed Rule 54(c). See Albemarle Paper Co. v. Moody, 422 U.S. 405, 424, 95 S.Ct. 2362, 2374, 45 L.Ed.2d 280 (1975). We hold only that the nature of the EEOC's enforcement action is such that it is not properly characterized as a "class action" subject to the procedural requirements of Rule 23.

89

446 U.S. 291 100 S.Ct. 1682 64 L.Ed.2d 297 State of RHODE ISLAND, Petitioner,v.Thomas J. INNIS. No. 78-1076. Argued Oct. 30, 1979. Decided May 12, 1980. Syllabus * Shortly after a taxicab driver, who had been robbed by a man wielding a sawed-off shotgun, identified a picture of respondent as that of his assailant, a Providence, R.I., patrolman spotted respondent, who was unarmed, on the street, arrested him, and advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. When other police officers arrived at the arrest scene, respondent was twice again advised of his Miranda rights, and he stated that he understood his rights and wanted to speak with a lawyer. Respondent was then placed in a police car to be driven to the central station in the company of three officers, who were instructed not to question respondent or intimidate him in any way. While en route to the station, two of the officers engaged in a conversation between themselves concerning the missing shotgun. One of the officers stated that there were "a lot of handicapped children running around in this area" because a school for such children was located nearby, and "God forbid one of them might find a weapon with shells and they might hurt themselves." Respondent interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located. Upon returning to the scene of the arrest where a search for the shotgun was in progress, respondent was again advised of his Miranda rights, replied that he understood those rights but that he "wanted to get the gun out of the way because of the kids in the area in the school," and then led the police to the shotgun. Before trial on charges of kidnapping, robbery, and murder of another taxicab driver, the trial court denied respondent's motion to suppress the shotgun and the statements he had made to the police regarding its discovery, ruling that respondent had waived his Miranda rights, and respondent was subsequently convicted. The Rhode Island Supreme Court set aside the conviction and held that respondent was entitled to a new trial, concluding that respondent had invoked his Miranda right to counsel and that, contrary to Miranda's mandate that, in the absence of counsel, all custodial interrogation then cease, the police officers in the vehicle had "interrogated" respondent without a valid waiver of his right to counsel. Held: Respondent was not "interrogated" in violation of his right under Miranda to remain silent until he had consulted with a lawyer. Pp. 297-303. (a) The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. Pp. 298-302. (b) Here, there was no express questioning of respondent; the conversation between the two officers was, at least in form, nothing more than a dialogue between them to which no response from respondent was invited. Moreover, respondent was not subjected to the "functional equivalent" of questioning, since it cannot be said that the officers should have known that their conversation was reasonably likely to elicit an incriminating response from respondent. There is nothing in the record to suggest that the officers were aware that respondent was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children, or that the police knew that respondent was unusually disoriented or upset at the time of his arrest. Nor does the record indicate that, in the context of a brief conversation, the officers should have known that respondent would suddenly be moved to make a self-incriminating response. While it may be said that respondent was subjected to "subtle compulsion," it must also be established that a suspect's incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response, which was not established here. Pp. 302-308. R.I., 391 A.2d 1158, vacated and remanded. Dennis J. Roberts, II, Providence, R. I., for petitioner. John A. MacFadyen, III, Providence, R. I., for respondent. Mr. Justice STEWART delivered the opinion of the Court. 1 In Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, the Court held that, once a defendant in custody asks to speak with a lawyer, all interrogation must cease until a lawyer is present. The issue in this case is whether the respondent was "interrogated" in violation of the standards promulgated in the Miranda opinion. 2 * On the night of January 12, 1975, John Mulvaney, a Providence, R.I., taxicab driver, disappeared after being dispatched to pick up a customer. His body was discovered four days later buried in a shallow grave in Coventry, R.I. He had died from a shotgun blast aimed at the back of his head. 3 On January 17, 1975, shortly after midnight, the Providence police received a telephone call from Gerald Aubin, also a taxicab driver, who reported that he had just been robbed by a man wielding a sawed-off shotgun. Aubin further reported that he had dropped off his assailant near Rhode Island College in a section of Providence known as Mount Pleasant. While at the Providence police station waiting to give a statement, Aubin noticed a picture of his assailant on a bulletin board. Aubin so informed one of the police officers present. The officer prepared a photo array, and again Aubin identified a picture of the same person. That person was the respondent. Shortly thereafter, the Providence police began a search of the Mount Pleasant area. 4 At approximately 4:30 a. m. on the same date, Patrolman Lovell, while cruising the streets of Mount Pleasant in a patrol car, spotted the respondent standing in the street facing him. When Patrolman Lovell stopped his car, the respondent walked towards it. Patrolman Lovell then arrested the respondent, who was unarmed, and advised him of his so-called Miranda rights. While the two men waited in the patrol car for other police officers to arrive, Patrolman Lovell did not converse with the respondent other than to respond to the latter's request for a cigarette. 5 Within minutes, Sergeant Sears arrived at the scene of the arrest, and he also gave the respondent the Miranda warnings. Immediately thereafter, Captain Leyden and other police officers arrived. Captain Leyden advised the respondent of his Miranda rights. The respondent stated that he understood those rights and wanted to speak with a lawyer. Captain Leyden then directed that the respondent be placed in a "caged wagon," a four-door police car with a wire screen mesh between the front and rear seats, and be driven to the central police station. Three officers, Patrolmen Gleckman, Williams, and McKenna, were assigned to accompany the respondent to the central station. They placed the respondent in the vehicle and shut the doors. Captain Leyden then instructed the officers not to question the respondent or intimidate or coerce him in any way. The three officers then entered the vehicle, and it departed. 6 While en route to the central station, Patrolman Gleckman initiated a conversation with Patrolman McKenna concerning the missing shotgun.1 As Patrolman Gleckman later testified: 7 "A. At this point, I was talking back and forth with Patrolman McKenna stating that I frequent this area while on patrol and [that because a school for handicapped children is located nearby,] there's a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves." App. 43-44. 8 Patrolman McKenna apparently shared his fellow officer's concern: 9 "A. I more or less concurred with him [Gleckman] that it was a safety factor and that we should, you know, continue to search for the weapon and try to find it." Id., at 53. 10 While Patrolman Williams said nothing, he overheard the conversation between the two officers: 11 "A. He [Gleckman] said it would be too bad if the little I believe he said a girl—would pick up the gun, maybe kill herself." Id., at 59. 12 The respondent then interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located. At this point, Patrolman McKenna radioed back to Captain Leyden that they were returning to the scene of the arrest and that the respondent would inform them of the location of the gun. At the time the respondent indicated that the officers should turn back, they had traveled no more than a mile, a trip encompassing only a few minutes. 13 The police vehicle then returned to the scene of the arrest where a search for the shotgun was in progress. There, Captain Leyden again advised the respondent of his Miranda rights. The respondent replied that he understood those rights but that he "wanted to get the gun out of the way because of the kids in the area in the school." The respondent then led the police to a nearby field, where he pointed out the shotgun under some rocks by the side of the road. 14 On March 20, 1975, a grand jury returned an indictment charging the respondent with the kidnaping, robbery, and murder of John Mulvaney. Before trial, the respondent moved to suppress the shotgun and the statements he had made to the police regarding it. After an evidentiary hearing at which the respondent elected not to testify, the trial judge found that the respondent had been "repeatedly and completely advised of his Miranda rights." He further found that it was "entirely understandable that [the officers in the police vehicle] would voice their concern [for the safety of the handicapped children] to each other." The judge then concluded that the respondent's decision to inform the police of the location of the shotgun was "a waiver, clearly, and on the basis of the evidence that I have heard, and [sic ] intelligent waiver, of his [Miranda ] right to remain silent." Thus, without passing on whether the police officers had in fact "interrogated" the respondent, the trial court sustained the admissibility of the shotgun and testimony related to its discovery. That evidence was later introduced at the respondent's trial, and the jury returned a verdict of guilty on all counts. 15 On appeal, the Rhode Island Supreme Court, in a 3-2 decision, set aside the respondent's conviction. R.I., 391 A.2d 1158. Relying at least in part on this Court's decision in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, the court concluded that the respondent had invoked his Miranda right to counsel and that, contrary to Mirandas' mandate that, in the absence of counsel, all custodial interrogation then cease, the police officers in the vehicle had "interrogated" the respondent without a valid waiver of his right to counsel. It was the view of the state appellate court that, even though the police officers may have been genuinely concerned about the public safety and even though the respondent had not been addressed personally by the police officers, the respondent nonetheless had been subjected to "subtle coercion" that was the equivalent of "interrogation" within the meaning of the Miranda opinion. Moreover, contrary to the holding of the trial court, the appellate court concluded that the evidence was insufficient to support a finding of waiver. Having concluded that both the shotgun and testimony relating to its discovery were obtained in violation of the Miranda standards and therefore should not have been admitted into evidence, the Rhode Island Supreme Court held that the respondent was entitled to a new trial. 16 We granted certiorari to address for the first time the meaning of "interrogation" under Miranda v. Arizona. 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492. II 17 In its Miranda opinion, the Court concluded that in the context of "custodial interrogation" certain procedural safeguards are necessary to protect a defendant's Fifth and Fourteenth Amendment privilege against compulsory self-incrimination. More specifically, the Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id., 384 U.S., at 444, 86 S.Ct., at 1612. Those safeguards included the now familiar Miranda warnings namely, that the defendant be informed "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires"—or their equivalent. Id., at 479, 86 S.Ct., at 1630. 18 The Court in the Miranda opinion also outlined in some detail the consequences that would result if a defendant sought to invoke those procedural safeguards. With regard to the right to the presence of counsel, the Court noted: 19 "Once warnings have been given, the subsequent procedure is clear. . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." Id., at 473-474, 86 S.Ct., at 1627-1628. 20 In the present case, the parties are in agreement that the respondent was fully informed of his Miranda rights and that he invoked his Miranda right to counsel when he told Captain Leyden that he wished to consult with a lawyer. It is also uncontested that the respondent was "in custody" while being transported to the police station. 21 The issue, therefore, is whether the respondent was "interrogated" by the police officers in violation of the respondent's undisputed right under Miranda to remain silent until he had consulted with a lawyer.2 In resolving this issue, we first define the term "interrogation" under Miranda before turning to a consideration of the facts of this case. 22 The starting point for defining "interrogation" in this context is, of course, the Court's Miranda opinion. There the Court observed that "[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id., at 444, 86 S.Ct., at 1612 (emphasis added). This passage and other references throughout the opinion to "questioning" might suggest that the Miranda rules were to apply only to those police interrogation practices that involve express questioning of a defendant while in custody. 23 We do not, however, construe the Miranda opinion so narrowly. The concern of the Court in Miranda was that the "interrogation environment" created by the interplay of interrogation and custody would "subjugate the individual to the will of his examiner" and thereby undermine the privilege against compulsory self-incrimination. Id., at 457-458, 86 S.Ct., at 1619. The police practices that evoked this concern included several that did not involve express questioning. For example, one of the practices discussed inMiranda was the use of line-ups in which a coached witness would pick the defendant as the perpetrator. This was designed to establish that the defendant was in fact guilty as a predicate for further interrogation. Id., at 453, 86 S.Ct., at 1602. A variation on this theme discussed in Miranda was the so-called "reverse line-up" in which a defendant would be identified by coached witnesses as the perpetrator of a fictitious crime, with the object of inducing him to confess to the actual crime of which he was suspected in order to escape the false prosecution. Ibid. The Court in Miranda also included in its survey of interrogation practices the use of psychological ploys, such as to "posi[t]" "the guilt of the subject," to "minimize the moral seriousness of the offense," and "to cast blame on the victim or on society." Id., at 450, 86 S.Ct., at 1615. It is clear that these techniques of persuasion, no less than express questioning, were thought, in a custodial setting, to amount to interrogation.3 24 This is not to say, however, that all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation. As the Court in Miranda noted: 25 "Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Id., at 478, 86 S.Ct., at 1630 (emphasis added). 26 It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. "Interrogation," as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.4 27 We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response5 from the suspect.6 The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.7 But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.8 B 28 Turning to the facts of the present case, we conclude that the respondent was not "interrogated" within the meaning of Miranda. It is undisputed that the first prong of the definition of "interrogation" was not satisfied, for the conversation between Patrolmen Gleckman and McKenna included no express questioning of the respondent. Rather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited. 29 Moreover, it cannot be fairly concluded that the respondent was subjected to the "functional equivalent" of questioning. It cannot be said, in short, that Patrolmen Gleckman and McKenna should have known that their conversation was reasonably likely to elicit an incriminating response from the respondent. There is nothing in the record to suggest that the officers were aware that the respondent was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children. Nor is there anything in the record to suggest that the police knew that the respondent was unusually disoriented or upset at the time of his arrest.9 30 The case thus boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few off hand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondent's contention that, under the circumstances, the officers' comments were particularly "evocative." It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him. 31 The Rhode Island Supreme Court erred, in short, in equating "subtle compulsion" with interrogation. That the officers' comments struck a responsive chord is readily apparent. Thus, it may be said, as the Rhode Island Supreme Court did say, that the respondent was subjected to "subtle compulsion." But that is not the end of the inquiry. It must also be established that a suspect's incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response.10 This was not established in the present case. 32 For the reasons stated, the judgment of the Supreme Court of Rhode Island is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. 33 It is so ordered. 34 Mr. Justice WHITE, concurring. 35 I would prefer to reverse the judgment for the reasons stated in my dissenting opinion in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); but given that judgment and the Court's opinion in Brewer, I join the opinion of the Court in the present case. 36 Mr. CHIEF JUSTICE BURGER, concurring in the judgment. 37 Since the result is not inconsistent with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), I concur in the judgment. 38 The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date. I fear, however, that the rationale in Parts II-A and II-B, of the Court's opinion will not clarify the tension between this holding and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and our other cases. It may introduce new elements of uncertainty; under the Court's test, a police officer, in the brief time available, apparently must evaluate the suggestibility and susceptibility of an accused. See, e. g., ante, at 302, n. 8. Few, if any, police officers are competent to make the kind of evaluation seemingly contemplated; even a psychiatrist asked to express an expert opinion on these aspects of a suspect in custody would very likely employ extensive questioning and observation to make the judgment now charged to police officers. 39 Trial judges have enough difficulty discerning the boundaries and nuances flowing from post-Miranda opinions, and we do not clarify that situation today.* 40 Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting. 41 I am substantially in agreement with the Court's definition of "interrogation" within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In my view, the Miranda safeguards apply whenever police conduct is intended or likely to produce a response from a suspect in custody. As I read the Court's opinion, its definition of "interrogation" for Miranda purposes is equivalent, for practical purposes, to my formulation, since it contemplates that "where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect." Ante, at 302, n. 7. Thus, the Court requires an objective inquiry into the likely effect of police conduct on a typical individual, taking into account any special susceptibility of the suspect to certain kinds of pressure of which the police know or have reason to know. 42 I am utterly at a loss, however, to understand how this objective standard as applied to the facts before us can rationally lead to the conclusion that there was no interrogation. Innis was arrested at 4:30 a. m., handcuffed, searched, advised of his rights, and placed in the back seat of a patrol car. Within a short time he had been twice more advised of his rights and driven away in a four-door sedan with three police officers. Two officers sat in the front seat and one sat beside Innis in the back seat. Since the car traveled no more than a mile before Innis agreed to point out the location of the murder weapon, Officer Gleckman must have begun almost immediately to talk about the search for the shotgun. 43 The Court attempts to characterize Gleckman's statements as "no more than a few off hand remarks" which could not reasonably have been expected to elicit a response. Ante, at 303. If the statements had been addressed to respondent, it would be impossible to draw such a conclusion. The simple message of the "talking back and forth" between Gleckman and McKenna was that they had to find the shotgun to avert a child's death. 44 One can scarcely imagine a stronger appeal to the conscience of a suspect—any suspect—than the assertion that if the weapon is not found an innocent person will be hurt or killed. And not just any innocent person, but an innocent child—a little girl—a helpless, handicapped little girl on her way to school. The notion that such an appeal could not be expected to have any effect unless the suspect were known to have some special interest in handicapped children verges on the ludicrous. As a matter of fact, the appeal to a suspect to confess for the sake of others, to "display some evidence of decency and honor," is a classic interrogation technique. See, e. g., F. Inbau & J. Reid, Criminal Interrogation and Confessions 60-62 (2d ed. 1967). 45 Gleckman's remarks would obviously have constituted interrogation if they had been explicitly directed to respondent, and the result should not be different because they were nominally addressed to McKenna. This is not a case where police officers speaking among themselves are accidentally overheard by a suspect. These officers were "talking back and forth" in close quarters with the handcuffed suspect,* traveling past the very place where they believed the weapon was located. They knew respondent would hear and attend to their conversation, and they are chargeable with knowledge of and responsibility for the pressures to speak which they created. 46 I firmly believe that this case is simply an aberration, and that in future cases the Court will apply the standard adopted today in accordance with its plain meaning. 47 Mr. Justice STEVENS, dissenting. 48 An original definition of an old term coupled with an original finding of fact on a cold record makes it possible for this Court to vacate the judgment of the Supreme Court of Rhode Island. That court, on the basis of the facts in the record before it, concluded that members of the Providence, R.I., police force had interrogated respondent, who was clearly in custody at the time, in the absence of counsel after he had requested counsel. In my opinion the state court's conclusion that there was interrogation rests on a proper interpretation of both the facts and the law; thus, its determination that the products of the interrogation were inadmissible at trial should be affirmed. 49 The undisputed facts can be briefly summarized. Based on information that respondent, armed with a sawed-off shotgun, had just robbed a cabdriver in the vicinity of Rhode Island College, a number of Providence police officers began a thorough search of the area in the early morning of January 17, 1975. One of them arrested respondent without any difficulty at about 4:30 a. m. Respondent did not then have the shotgun in his possession and presumably had abandoned it, or hidden it, shortly before he was arrested. Within a few minutes, at least a dozen officers were on the scene. App. 37. It is fair to infer that an immediate search for the missing weapon was a matter of primary importance. 50 When a police captain arrived, he repeated the Miranda warnings that a patrolman and a sergeant had already given to respondent, and respondent said he wanted an attorney. The captain then ordered two officers who were assigned to a "caged wagon" to transport respondent to the central station, and ordered a third officer to ride in the back seat with respondent. While the wagon was en route to the station, one of the officers, Officer Gleckman, stated that there was a school for handicapped children in the vicinity and "God forbid" one of them should find the shotgun and hurt herself.1 As a result of this statement, respondent told the officers that he was willing to show them where the gun was hidden.2 The wagon returned to the scene and respondent helped the officers locate the gun. 51 After a suppression hearing, the trial court assumed, without deciding, that Officer Gleckman's statement constituted interrogation. The court nevertheless allowed the shotgun and testimony concerning respondent's connection to it into evidence on the ground that respondent had waived his Miranda rights when he consented to help police locate the gun. On appeal from respondent's conviction for kidnaping, robbery and murder, the Rhode Island Supreme Court held that Officer Gleckman's statement constituted impermissible interrogation and rejected the trial court's waiver analysis. It therefore reversed respondent's conviction and remanded for a new trial. Today, the Court reverses the Rhode Island court's resolution of the interrogation issue, creating a new definition of that term and holding, as a matter of law, that the statement at issue in this case did not constitute interrogation. 52 * As the Court recognizes, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 makes it clear that, once respondent requested an attorney, he had an absolute right to have any type of interrogation cease until an attorney was present.3 As it also recognizes, Miranda requires that the term "interrogation" be broadly construed to include "either express questioning or its functional equivalent." Ante, at 300-301.4 In my view any statement that would normally be understood by the average listener as calling for a response is the functional equivalent of a direct question, whether or not it is punctuated by a question mark. The Court, however, takes a much narrower view. It holds that police conduct is not the "functional equivalent" of direct questioning unless the police should have known that what they were saying or doing was likely to elicit an incriminating response from the suspect.5 This holding represents a plain departure from the principles set forth in Miranda. 53 In Miranda the Court required the now-familiar warnings to be given to suspects prior to custodial interrogation in order to dispel the atmosphere of coercion that necessarily accompanies such interrogations. In order to perform that function effectively, the warnings must be viewed by both the police and the suspect as a correct and binding statement of their respective rights.6 Thus, if, after being told that he has a right to have an attorney present during interrogation, a suspect chooses to cut off questioning until counsel can be obtained, his choice must be "scrupulously honored" by the police. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, id., at 110, 96 S.Ct., at 329, n. 2 (WHITE, J., concurring in result). At the least this must mean that the police are prohibited from making deliberate attempts to elicit statements from the suspect.7 Yet the Court is unwilling to characterize all such attempts as "interrogation," noting only that "where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonable likely to have that effect."8 Ante, at 302, n. 7. 54 From the suspect's, point of view, the effectiveness of the warnings depends on whether it appears that the police are scrupulously honoring his rights. Apparent attempts to elicit information from a suspect after he has invoked his right to cut off questioning necessarily demean that right and tend to reinstate the imbalance between police and suspect that the Miranda warnings are designed to correct.9 Thus, if the rationale for requiring those warnings in the first place is to be respected, any police conduct or statements that would appear to a reasonable person in the suspect's position to call for a response must be considered "interrogation."10 55 In short, in order to give full protection to a suspect's right to be free from any interrogation at all, the definition of "interrogation" must include any police statement or conduct that has the same purpose or effect as a direct question. Statements that appear to call for a response from the suspect, as well as those that are designed to do so, should be considered interrogation. By prohibiting only those relatively few statements or actions that a police officer should know are likely to elicit an incriminating response, the Court today accords a suspect considerably less protection. Indeed, since I suppose most suspects are unlikely to incriminate themselves even when questioned directly, this new definition will almost certainly exclude every statement that is not punctuated with a question mark from the concept of "interrogation."11 56 The difference between the approach required by a faithful adherence to Miranda and the stinted test applied by the Court today can be illustrated by comparing three different ways in which Officer Gleckman could have communicated his fears about the possible dangers posed by the shotgun to handicapped children. He could have: 57 (1) directly asked Innis: 58 Will you please tell me where the shotgun is so we can protect handicapped school children from danger? 59 (2) announced to the other officers in the wagon: 60 If the man sitting in the back seat with me should decide to tell us where the gun is, we can protect handicapped children from danger. 61 or (3) stated to the other officers: 62 It would be too bad if a little handicapped girl would pick up the gun that this man left in the area and maybe kill herself. 63 In my opinion, all three of these statements should be considered interrogation because all three appear to be designed to elicit a response from anyone who in fact knew where the gun was located.12 Under the Court's test, on the other hand, the form of the statements would be critical. The third statement would not be interrogation because in the Court's view there was no reason for Officer Gleckman to believe that Innis was susceptible to this type of an implied appeal, ante, at 302; therefore, the statement would not be reasonably likely to elicit an incriminating response. Assuming that this is true, see infra, at 314-315, then it seems to me that the first two statements, which would be just as unlikely to elicit such a response, should also not be considered interrogation. But, because the first statement is clearly an express question, it would be considered interrogation under the Court's test. The second statement, although just as clearly a deliberate appeal to Innis to reveal the location of the gun, would presumably not be interrogation because (a) it was not in form a direct question and (b) it does not fit within the "reasonably likely to elicit an incriminating response" category that applies to indirect interrogation. 64 As this example illustrates, the Court's test creates an incentive for police to ignore a suspect's invocation of his rights in order to make continued attempts to extract information from him. If a suspect does not appear to be susceptible to a particular type of psychological pressure,13 the police are apparently free to exert that pressure on him despite his request for counsel, so long as they are careful not to punctuate their statements with question marks. And if, contrary to all reasonable expectations, the suspect makes an incriminating statement, that statement can be used against him at trial. The Court thus turns Miranda's unequivocal rule against any interrogation at all into a trap in which unwary suspects may be caught by police deception. II 65 Even if the Court's new definition of the term "interrogation" provided a proper standard for deciding this case, I find it remarkable that the Court should undertake the initial task of applying its new standard to the facts of the present case. As noted above, the trial judge did not decide whether Officer Gleckman had interrogated respondent. Assuming, arguendo, that he had, the judge concluded that respondent had waived his request for counsel by offering to help find the gun. The Rhode Island Supreme Court disagreed on the waiver questions,14 and expressly concluded that interrogation had occurred. Even if the Rhode Island court might have reached a different conclusion under the Court's new definition, I do not believe we should exclude it from participating in a review of the actions taken by the Providence police. Indeed, given the creation of a new standard of decision at this stage of the litigation, the proper procedure would be to remand to the trial court for findings on the basis of evidence directed at the new standard. 66 In any event, I think the Court is clearly wrong in holding, as a matter of law, that Officer Gleckman should not have realized that his statement was likely to elicit an incriminating response. The Court implicitly assumes that, at least in the absence of a lengthy harangue, a criminal suspect will not be likely to respond to indirect appeals to his humanitarian impulses. It then goes on to state that the officers in this case had no reason to believe that respondent would be unusually susceptible to such appeals. Ante, at 302. Finally, although the significance of the officer's intentions is not clear under its objective test, the Court states in a footnote that the record "in no way suggests" that Officer Gleckman's remarks were designed to elicit a response. Ante, at 303, n. 9. 67 The Court's assumption that criminal suspects are not susceptible to appeals to conscience is directly contrary to the teachings of police interrogation manuals, which recommend appealing to a suspect's sense of morality as a standard and often successful interrogation technique.15 Surely the practical experience embodied in such manuals should not be ignored in a case such as this in which the record is devoid of any evidence one way or the other—as to the susceptibility of suspects in general or of Innis in particular. 68 Moreover, there is evidence in the record to support the view that Officer Gleckman's statement was intended to elicit a response from Innis. Officer Gleckman, who was not regularly assigned to the caged wagon, was directed by a police captain to ride with respondent to the police station. Although there is a dispute in the testimony, it appears that Gleckman may well have been riding in the back seat with Innis.16 The record does not explain why, notwithstanding the fact that respondent was handcuffed, unarmed, and had offered no resistance when arrested by an officer acting alone, the captain ordered Officer Gleckman to ride with respondent.17 It is not inconceivable that two professionally trained police officers concluded that a few well-chosen remarks might induce respondent to disclose the whereabouts of the shotgun.18 This conclusion becomes even more plausible in light of the emotionally charged words chosen by Officer Gleckman ("God forbid" that a "little girl" should find the gun and hurt herself).19 III 69 Under my view of the correct standard, the judgment of the Rhode Island Supreme Court should be affirmed because the statements made within Innis' hearing were as likely to elicit a response as a direct question. However, even if I were to agree with the Court's much narrower standard, I would disagree with its disposition of this particular case because the Rhode Island courts should be given an opportunity to apply the new standard to the facts of this case. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 Although there was conflicting testimony about the exact seating arrangements, it is clear that everyone in the vehicle heard the conversation. 2 Since we conclude that the respondent was not "interrogated" for Miranda purposes, we do not reach the question whether the respondent waived his right under Miranda to be free from interrogation until counsel was present. 3 To limit the ambit of Miranda to express questioning would "place a premium on the ingenuity of the police to devise methods of indirect interrogation, rather than to implement the plain mandate of Miranda." Commonwealth v. Hamilton, 445 Pa. 292, 297, 285 A.2d 172, 175. 4 There is language in the opinion of the Rhode Island Supreme Court in this case suggesting that the definition of "interrogation" under Miranda is informed by this Court's decision in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424. R.I., 391 A.2d 1158, 1161-1162. This suggestion is erroneous. Our decision in Brewer rested solely on the Sixth and Fourteenth Amendment right to counsel. 430 U.S., at 397-399, 97 S.Ct., at 1238-1239. That right, as we held in Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246, prohibits law enforcement officers from "deliberately elicit[ing]" incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. Custody in such a case is not controlling; indeed, the petitioner in Massiah was not in custody. By contrast, the right to counsel at issue in the present case is based not on the Sixth and Fourteenth Amendments, but rather on the Fifth and Fourteenth Amendments as interpreted in the Miranda opinion. The definitions of "interrogation" under the Fifth and Sixth Amendments, if indeed the term "interrogation" is even apt in the Sixth Amendment context, are not necessarily interchangeable, since the policies underlying the two constitutional protections are quite distinct. See Kamisar, Brewer v. Williams, Massiah and Miranda: What is "Interrogation"? When Does it Matter?, 67 Geo.L.J. 1, 41-55 (1978). 5 By "incriminating response" we refer to any response whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial. As the Court observed in Miranda : "No distinction can be drawn between statements which are direct confessions and statements which amount to 'admissions' of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely 'exculpatory'. If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement." 384 U.S., at 476-477, 86 S.Ct., at 1629. 6 One of the dissenting opinions seems totally to misapprehend this definition in suggesting that it "will almost certainly exclude every statement [of the police] that is not punctuated with a question mark." Post, at 312. 7 This is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect. 8 Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect. 9 The record in no way suggests that the officers' remarks were designed to elicit a response. See n.7, supra. It is significant that the trial judge, after hearing the officers' testimony, concluded that it was "entirely understandable that [the officers] would voice their concern [for the safety of the handicapped children] to each other." 10 By way of example, if the police had done no more than to drive past the site of the concealed weapon while taking the most direct route to the police station, and if the respondent, upon noticing for the first time the proximity of the school for handicapped children, had blurted out that he would show the officers where the gun was located, it could not seriously be argued that this "subtle compulsion" would have constituted "interrogation" within the meaning of the Miranda opinion. * That we may well be adding to the confusion is suggested by the problem dealt with in California v. Braeseke, 444 U.S. 1309, 100 S.Ct. 742, 62 L.Ed.2d 720 (1980) (REHNQUIST, J., in chambers) (difficulty of determining whether a defendant has waived his Miranda rights), and cases cited therein. * Gleckman may even have been sitting in the back seat beside respondent. See App. 50, 52, 56; but see id., 39, 43, 47, 58. 1 Although the testimony is not entirely clear as to the exact wording of Officer Gleckman's statement, it appears that he talked about the possible danger being to a little girl. App. 59. 2 After he returned to the scene, respondent told the police captain that he wanted to help them locate the shotgun because he "wanted to get the gun out of the way because of the kids in the area in the school." Id., 39. Given the timing of respondent's statement and the absence of any evidence that he knew about the school prior to Officer Gleckman's statement, it is clear that respondent's statement was the direct product of the conversation in the police wagon. 3 Ante, at 293, 297-298. In Miranda the Court explicitly stated: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S., at 474, 86 S.Ct., at 1628. 4 As the Court points out, ante, at 299, the Court in Miranda was acutely aware of the fact that police interrogation techniques are not limited to direct questioning. 5 "That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Ante, at 301. In limiting its test to police statements "likely to elicit an incriminating response," the Court confuses the scope of the exclusionary rule with the definition of "interrogation." Of course, any incriminating statement as defined in Miranda, quoted ante, at 301, n. 5, must be excluded from evidence if it is the product of impermissible interrogation. But I fail to see how this rule helps in deciding whether a particular statement or tactic constitutes "interrogation." After all, Miranda protects a suspect in Innis' position not simply from interrogation that is likely to be successful, but from any interrogation at all. 6 "We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." 384 U.S., at 467, 86 S.Ct., at 1624. 7 In Brewer v. Williams, 430 U.S. 387, 398-399, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424, the Court applied the "deliberately elicited" standard in determining that statements were extracted from Williams in violation of his Sixth Amendment right to counsel. Although this case involves Fifth Amendment rights and the Miranda rules designed to safeguard those rights, respondent's invocation of his right to counsel makes the two cases indistinguishable. In both cases the police had an unqualified obligation to refrain from trying to elicit a response from the suspect in the absence of his attorney. See Kamisar, Brewer v. Williams, Massiah, and Miranda : What is "Interrogation"? When Does it Matter?, 67 Geo.L.J. 1, 73 (1978). 8 This factual assumption is extremely dubious. I would assume that police often interrogate suspects without any reason to believe that their efforts are likely to be successful in the hope that a statement will nevertheless be forthcoming. 9 See White, Police Trickery in Inducing Confessions, 127 U.Pa.L.Rev. 581, 609-611 (1979). As Mr. Justice WHITE pointed out in his opinion concurring in the result in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, when a suspect invokes his right to an attorney, he is expressing "his own view that he is not competent to deal with the authorities without legal advice." Id., at 110, n. 2, 96 S.Ct., at 329, n. 2. Under these circumstances, continued interrogation is likely to produce the same type of coercive atmosphere that the Miranda warnings are supposed to dispel. 10 I would use an objective standard both to avoid the difficulties of proof inherent in a subjective standard and to give police adequate guidance in their dealings with suspects who have requested counsel. 11 The Court's suggestion, ante, at 301, n. 6, that I totally misapprehend the import of its definition is belied by its application of the new standard to the facts of this case. 12 See White, Rhode Island v. Innis : The Significance of a Suspect's Assertion of His Right to Counsel, 17 Am.Crim.L.Rev. 53, 68 (1979), where the author proposes the same test and applies it to the facts of this case, stating: "Under the proposed objective standard, the result is obvious. Since the conversation indicates a strong desire to know the location of the shotgun, any person with knowledge of the weapon's location would be likely to believe that the officers wanted him to disclose its location. Thus, a reasonable person in Innis's position would believe that the officers were seeking to solicit precisely the type of response that was given." 13 As THE CHIEF JUSTICE points out in his concurring opinion, "[f]ew, if any, police officers are competent to make the kind of evaluation seemingly contemplated [by the Court's opinion]" except by close and careful observation. Ante, at 304. Under these circumstances, courts might well find themselves deferring to what appeared to be good-faith judgments on the part of the police. 14 Like the Rhode Island Supreme Court, I think it takes more than a prisoner's answer to a question to waive his right not to have the question asked in the first place. See Brewer v. Williams, 430 U.S., at 404, 97 S.Ct., at 1242, 51 L.Ed.2d 424; Michigan v. Mosley, 423 U.S., at 110, n. 2, 96 S.Ct., at 329, n. 2, 46 L.Ed.2d 313 (WHITE, J., concurring in result) ("[T]he accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism"). See also People v. Cunningham, 49 N.Y.2d 203, 210, 424 N.Y.S.2d 421, 425, 400 N.E.2d 360, 364-365 (1980). 15 See, e. g., F. Inbau & J. Reid, Criminal Interrogation and Confessions 60-61 (2d ed. 1967). Under the heading "Urge the Subject to Tell the Truth for the Sake of His Own Conscience, Mental Relief, or Moral Well-Being, as Well as 'For the Sake of Everybody Concerned,' and Also Because It Is 'The Only Decent and Honorable Thing to Do,' " the authors advise interrogators to "challenge . . . the offender to display some evidence of decency and honor" by appealing to his religious or moral sensibilities. 16 Officer Gleckman testified that he was riding in the front seat with the driver. App. 46. However, Officer McKenna, who had also ridden in the wagon, and the police captain both testified that Gleckman rode in the back seat with the suspect. Id., at 50-52, 55-56, 38-39. Thereafter, the third officer in the wagon corroborated Gleckman's testimony. Id., at 58. 17 This was apparently a somewhat unusual procedure. Officer McKenna testified that: "If I remember correctly, the vehicle—Innis was placed in it and the vehicle door was closed, and we were waiting for instructions from Captain Leyden. . . . At that point, Captain Leyden instructed Patrolman Gleckman to accompany us. There's usually two men assigned to the wagon, but in this particular case he wanted a third man to accompany us, and Gleckman got in the rear seat. In other words, the door was closed. Gleckman opened the door and got in the vehicle with the subject. Myself, I went over to the other side and got in the passenger's side in the front." Id., 55-56. 18 Although Officer Gleckman testified that the captain told him not to interrogate, intimidate or coerce respondent on the way back, id., at 46, this does not rule out the possibility that either or both of them thought an indirect psychological ploy would be permissible. 19 In his article quoted in n. 12, supra, Professor White also points out that the officers were probably aware that the chances of a handicapped child's finding the weapon at a time when police were not present were relatively slim. Thus, he concluded that it was unlikely that the true purpose of the conversation was to voice a genuine concern over the children's welfare. See 17 Am.Crim.L.Rev., at 68.

01

446 U.S. 359 100 S.Ct. 1723 64 L.Ed.2d 354 NACHMAN CORPORATION, Petitioner,v.PENSION BENEFIT GUARANTY CORPORATION et al. No. 78-1557. Argued Jan. 7, 1980. Decided May 12, 1980. Rehearing Denied June 30, 1980. See 448 U.S. 908, 100 S.Ct. 3051. Syllabus * As one of the means of protecting the interests of beneficiaries under private pension plans for employees, Title IV of the Employee Retirement Income Security Act of 1974 (ERISA) created a plan termination insurance program that became effective in four successive stages. Section 4022(a) of Title IV provides that if benefits are "nonforfeitable" they are insured by respondent Pension Benefit Guaranty Corporation (PBGC), and under § 4062(b) of that Title PBGC has a right to reimbursement from the employer for insurance paid to cover nonforfeitable benefits. Section 3 of Title I of ERISA provides that "[f]or purposes of this title [t]he term 'nonforfeitable' when used with respect to a pension benefit or right means a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan." Petitioner employer, pursuant to a collective-bargaining agreement, established a pension plan covering employees represented by respondent union at one of petitioner's plants, and his plan contained a clause limiting benefits, upon termination of the plan, to the assets in the pension fund. Petitioner, upon closing such plant, terminated the pension plan the day before January 1, 1976, the date on which much of ERISA became effective, at which time the pension fund assets were sufficient to pay only about 35% of the vested benefits to those employees entitled thereto. Petitioner thereafter filed an action against the PBGC in Federal District Court seeking a declaration that it has no liability under ERISA for any failure of the pension plan to pay all of the vested benefits in full, and an order enjoining the PBGC from taking actions inconsistent with that declaration. Granting summary judgment for petitioner, the District Court held that the limitation of liability clause in the plan was valid on the date of termination and that such clause prevented the benefits at issue from being characterized as "nonforfeitable." The Court of Appeals reversed, concluding, in reliance on the Title I definition of "nonforfeitability," that the limitation of liability clause merely affected the extent to which the benefits could be collected, without qualifying the employees' rights against the plan. Held : The plan's limitation of liability clause does not prevent the vested benefits from being characterized as "nonforfeitable" and thus covered by the insurance program. Petitioner's argument that the Title I definition of "nonforfeitable" determines which benefits are insured under Title IV, that thus benefits are not insured unless they are "unconditional" and "legally enforceable against the plan," that because of the limitation of liability clause such elements of the definition are not satisfied, and that therefore the benefits are forfeitable and necessarily uninsurable, is without merit. Such argument is not supported by a literal reading of the definition on which it relies, and it is inconsistent with the clear language, structure, and purpose of Title IV. Pp. 370-386. (a) To view the term "nonforfeitable" as describing the quality of the participant's right to a pension rather than a limit on the amount he may collect is consistent with the Title I definition of such term and accords with the interpretation of the term in Title IV adopted by the PBGC, the agency responsible for administering the Title IV insurance program. Pp. 370-374. (b) There is no evidence that Congress intended to exclude otherwise vested benefits from the insurance program solely because the employer had disclaimed liability for any deficiency in the pension fund. To the contrary, § 4062(b), the reimbursement provision, makes it clear that Congress was not only worried about plan terminations resulting from business failures but was also concerned about the termination of underfunded plans, such as the one here, by solvent employers. And the fact that the provision of § 4062(b) limiting the amount of employer liability for reimbursement to 30% of the employer's net worth would be meaningless unless the employer has disclaimed direct liability demonstrates that Congress did not intend such a disclaimer to render otherwise vested benefits "forfeitable" within the meaning of § 4022. Pp. 374-382. (c) Petitioner's proposed construction of the statute, whereby cost-free terminations of pension plans would be authorized prior to January 1, 1976, with full liability for all promised benefits thereafter, would distort the orderly phase-in of the statutory program designed by Congress. It appears that Congress intended to discourage unnecessary terminations even during the phase-in period and to place a reasonable ceiling on the potential cost of a termination during the principal life of ERISA—the period after January 1, 1976. Pp. 382-386. 592 F.2d 947 (7th Cir.), affirmed. Robert W. Gettleman, Chicago, Ill., for petitioner. Henry Rose, Washington, D. C., for respondent Pension Benefit Guaranty Corp. M. Jay Whitman, Detroit, Mich., for respondent UAW. Mr. Justice STEVENS delivered the opinion of the Court. 1 On September 2, 1974, following almost a decade of studying the Nation's private pension plans, Congress enacted the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U.S.C. § 1001 et seq. As a predicate for this comprehensive and reticulated statute,1 Congress made detailed findings which recited, in part, "that the continued well-being and security of millions of employees and their dependents are directly affected by these plans; [and] that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits. . . ." ERISA § 2(a), 29 U.S.C. § 1001(a). As one of the means of protecting the interests of beneficiaries, Title IV of ERISA created a plan termination insurance program that became effective in successive stages. The question in this case is whether former employees of petitioner with vested interests in a plan that terminated the day before much of ERISA became fully effective are covered by the insurance program notwithstanding a provision in the plan limiting their benefits to the assets in the pension fund. 2 Stated in statutory terms, the question is whether a plan provision that limits otherwise defined, vested benefits to the amounts that can be provided by the assets of the fund prevents such benefits from being characterized as "nonforfeitable" within the meaning of § 4022(a) of ERISA, 29 U.S.C. § 1322(a).2 If the benefits are "nonforfeitable," they are insured by the Pension Benefit Guaranty Corporation (PBGC) under Title IV.3 And if insurance is payable to the former employees, the PBGC has a statutory right under § 4062(b) to reimbursement from the employer.4 It was petitioner's interest in avoiding liability for such reimbursement that gave rise to this action for declaratory and injunctive relief. 3 The relevant facts are undisputed. In 1960, pursuant to a collective-bargaining agreement, petitioner established a pension plan covering employees represented by the respondent union at its Chicago plant. The plan, as amended from time to time, provided for the payment of monthly benefits computed on the basis of age and years of service at the time of retirement.5 Benefits became "vested"—that is to say, the employee's right to the benefit would survive a termination of his employment—after either 10 or 15 years of service. The 15-year vesting provisions would not have complied with the minimum vesting standards in Title I of ERISA that were to become effective on January 1, 1976,6 the day after termination of the plan. 4 Petitioner agreed to, and did, make regular contributions sufficient to cover accruing liabilities, to pay administrative expenses, and to amortize past service liability over a 30-year period.7 Consistent with the agreement and with accepted actuarial practice, it was anticipated that the plan would not be completely funded until 1990. 5 Petitioner retained the right to terminate the plan when the collective-bargaining agreement expired merely by giving 90 days' notice of intent to do so. The agreement specified that upon termination the available funds, after payment of expenses, would be distributed to beneficiaries, classified by age and seniority, but only to the extent that assets were available. The critical provision of the agreement, Art. V, § 3, stated: 6 "Benefits provided for herein shall be only such benefits as can be provided by the assets of the fund. In the event of termination of this Plan, there shall be no liability or obligation on the part of the Company to make any further contributions to the Trustee except such contributions, if any, as on the effective date of such termination, may then be accrued but unpaid. App. 24.8 7 In 1975 petitioner decided to close its Chicago plant. Its collective-bargaining agreement expired on October 31, 1975, and it terminated the pension plan covering the persons employed at that plant on December 31, 1975, the day before ERISA would have required significant changes in at least the vesting provisions of the plan. At that time 135 employees had accrued benefits with an average value of approximately $77 per month. Those benefits were concededly "vested in a contractual sense."9 The assets in the fund were sufficient to pay only about 35% of the vested benefits. 8 In 1976 petitioner filed an action against the PBGC, seeking a declaration that it has no liability under ERISA for any failure of the plan to pay all of the vested benefits in full, and an order enjoining the PBGC from taking actions inconsistent with that declaration. The District Court accepted petitioner's contentions that the limitation of liability clause in the plan was valid on the date of termination, that the clause prevented the benefits at issue from being characterized as "nonforfeitable," and that petitioner was therefore entitled to summary judgment. 436 F.Supp. 1334 (ND Ill.1977). 9 The Court of Appeals for the Seventh Circuit reversed. 592 F.2d 947 (1979). Relying on the definition of "nonforfeitable" in Title I of ERISA,10 the court concluded that the limitation of liability clause merely affected the extent to which the benefits could be collected, without qualifying the employees' rights against the plan. This conclusion was buttressed by a comprehensive review of the legislative history in which Judge Sprecher noted that the words "vested" and "nonforfeitable" had been used interchangeably throughout the congressional reports and debates, that the specific purpose of Title IV insurance was to protect employees from the kind of risk presented here (insufficient funds in the plan to cover vested benefits at termination), and that a contrary holding "would totally subvert the congressional intent."11 10 Having construed the statute as it did, the Court of Appeals was required to confront petitioner's Constitutional argument that the imposition of a retroactive liability for the payment of unfunded, vested benefits that was not assumed under the collective-bargaining agreement, violates the Due Process Clause of the Fifth Amendment. The Court of Appeals agreed that ERISA was not wholly prospective in that it applies to pension plans in existence before the effective date of the Act. It concluded, however, that Congress had adequately tempered the Act's burdens on employers and that those burdens were sufficiently justified by the public purposes supporting the legislation.12 11 The petition for certiorari sought review of both the constitutional question and the question whether the statute had been properly construed to impose continuing liability on an employer that had lawfully terminated its plan prior to the effective date of the minimum vesting standards contained in Title I of ERISA. We granted certiorari, but limited our review to the statutory question. 442 U.S. 940, 99 S.Ct. 2881, 61 L.Ed.2d 310. 12 Petitioner urges us to adopt a construction of the statute that would avoid the necessity of confronting constitutional questions,13 and correctly points out that new rules applying to pension funds "should not be applied retroactively unless the legislature has plainly commanded that result." Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 721, 98 S.Ct. 1370, 1382, 55 L.Ed.2d 657. But petitioner's argument for reversal relies primarily on the language of the statutory definition of "nonforfeitable" contained in Title I, see n. 10, supra. If the Title I definition determines which benefits are insured under Title IV, benefits are not insured unless they are "unconditional" and "legally enforceable against the plan." Since petitioner's plan expressly states that benefits "shall be only such benefits as can be provided by the assets of the fund," petitioner argues that those elements of the statutory definition are not satisfied. Therefore, the benefits are forfeitable and necessarily uninsurable. Thus, petitioner concludes, it is not liable to anyone under the statute for the fund's inability to cover all vested benefits. Petitioner submits that this result is consonant with Congress' decision to postpone the effective date of the minimum vesting and funding requirements of Title I until January 1, 1976. Petitioner interprets that postponement as having been intended, among other things, to allow employers the opportunity to avoid the harsh consequences of the statute's retroactive application by freely terminating their plans at any time prior to that date. 13 We must reject petitioner's argument. We first note that the plan provision on which petitioner relies, supra, at 365, read as a whole, merely disclaims direct employer liability and imposes no condition on the benefits. See n. 8, supra, and n. 17, infra. Thus, petitioner's argument is not supported by a purely literal reading of the definition on which it relies and is inconsistent with the clear language, structure and purpose of Title IV. Since we construe petitioner's plan as containing only an employer liability disclaimer clause, we cannot accept its statutory argument without virtually eviscerating Title IV as applied to plans terminating prior to January 1, 1976. Such a result not only would be contrary to the four-stage phase-in of the program of insurance and employer liability designed by Congress, but also would impose an extraordinarily harsh and plainly unintended burden on employers by operation of Title I after that date. We first consider petitioner's textual argument divorced from the statute as a whole; we next examine the structure and history of Title IV; and we finally explain how petitioner's proposed construction would distort the orderly phase-in of the statutory program designed by Congress. 14 * The statutory issue presented in the case is whether petitioner's employees' benefits are "nonforfeitable . . . under the terms of a plan" within the meaning of § 4022(a) of the Act. See n. 2, supra. Petitioner concedes that its employees' benefits are "vested in a contractual sense." The question is whether such benefits were insured under Title IV when the plan was terminated even though the plan expressly provided that petitioner was not liable if the plan's assets were insufficient to cover them. 15 The key statutory term, "nonforfeitable benefits," is nowhere defined in Title IV. Petitioner relies on the definition of "nonforfeitable" in Title I, § 3(19), see n. 10, supra. But definitions in that section are not necessarily applicable to Title IV, because they are limited by the introductory phrase, "For purposes of this title."14 Nothing in the statute or its legislative history tells us why the Title I definition of "nonforfeitable" is not made expressly applicable to Title IV. The legislative history does disclose, however, that earlier versions of what finally emerged as the Title I definition would unquestionably have covered the benefits at stake in this litigation, and that those earlier versions applied to the entire Act including the termination insurance provisions.15 If we assume that the original intent to have the definition apply to the entire statute survived the unexplained changes in the form of the definition, we should likewise assume that no change was intended in the substantive coverage of the insurance program. Indeed, as we shall demonstrate,16 the latter assumption is supported by the legislative history. But even assuming, arguendo, that the Title I definition controls and even if the legislative history were less clear than it is, three aspects of the Title I definition itself refute petitioner's argument that the "nonforfeitable" character of a participant's rights should be determined by focusing on whether the employer is liable for any deficiency in the fund's assets. 16 First, the principal subject of the definition is the word "claim"; it is the claim to the benefit, rather than the benefit itself, that must be "unconditional" and "legally enforceable against the plan." It is self-evident that a claim may remain valid and legally enforceable even though, as a practical matter, it may not be collectible from the assets of the obligor. 17 Second, the statutory definition refers to enforceability against "the plan." The only practical significance of the contractual provision limiting liability is to provide protection for the employer. With or without such a clause, the pension fund could pay no more than the amount of assets on hand. Giving the employer protection against liability does not qualify the beneficiary's rights against the plan itself.17 18 Third, the term "forfeiture" normally connotes a total loss in consequence of some event rather than a limit on the value of a person's rights. Each of the examples of a plan provision that is expressly described as not causing a forfeiture listed in § 203(a)(3), see n. 10, supra, describes an event—such as death or temporary re-employment—that might otherwise be construed as causing a forfeiture of the entire benefit. It is therefore surely consistent with the statutory definition of "nonforfeitable" to view it as describing the quality of the participant's right to a pension rather than a limit on the amount he may collect. 19 This reading of the Title I definition accords with the interpretation of the term "nonforfeitable" in Title IV adopted by the agency responsible for administering the Title IV insurance program. The PBGC has promulgated regulations containing a completely unambiguous definition of the term18 and has been paying benefits to over 12,000 participants in terminated plans on the basis of this understanding of its statutory responsibilities.19 We surely may not reject this contemporary construction of the statute by the PBGC20 without a careful examination of Title IV and its underlying legislative history to see what benefits Congress intended to insure. II 20 One of Congress' central purposes in enacting this complex legislation was to prevent the "great personal tragedy"21 suffered by employees whose vested benefits are not paid when pension plans are terminated.22 Congress found "that owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits." ERISA § 2(a), 88 Stat. 832, 29 U.S.C. § 1001(a). Congress wanted to correct this condition by making sure that if a worker has been promised a defined pension benefit upon retirement—and if he has fulfilled whatever conditions are required to obtain a vested benefit—he actually will receive it. The termination insurance program is a major part of Congress' response to the problem. Congress provided for a minimum funding schedule and prescribed standards of conduct for plan administrators to make as certain as possible that pension fund assets would be adequate. But if a plan nonetheless terminates without sufficient assets to pay all vested benefits, the PBGC is required to pay them—within certain dollar limitations not applicable here—23 from funds established by that corporation. 21 Throughout the entire legislative history, from the initial proposals to the Conference Report, the legislators consistently described the class ofpension benefits to be insured as "vested benefits."24 Petitioner recognizes, as it must, that the terms "vested" and "nonforfeitable" were used synonymously.25 Since Title IV neither uses nor defines the term "vested,"26 it is reasonable to infer that the term "nonforfeitable" was intended to describe benefits that were generally considered "vested" prior to the statute. And it is clear that the normal usage in the pension field was that even if the actual realization of expected benefits might depend on the sufficiency of plan assets, they were nonetheless considered vested.27 22 There is no evidence that Congress intended to exclude otherwise vested benefits from the insurance program solely because the employer had disclaimed liability for any deficiency in the pension fund. Indeed, there is strong evidence to the contrary. Congress understood that pension plans ordinarily contained disclaimer provisions of the sort petitioner relies on here.28 Given that understanding, the Title IV insurance program would have been wholly inapplicable to most pension plans. Since only the few plans in which the employer had not disclaimed liability would have been covered, the only purpose in providing any insurance at all would be to protect employees against the risk of employer insolvency.29 23 But § 4062(b)(2), 29 U.S.C. § 1362(b)(2), see n. 4, supra the reimbursement provision—demonstrates that insolvency was certainly not the only focus of Congress' concern. The very fact that § 4062(b)(2) requires employers to reimburse the PBGC for the payment of insured benefits makes it clear that Congress not only was worried about plan terminations resulting from business failures but also was concerned about the termination of underfunded plans by solvent employers.30 Of even greater significance is the provision limiting the amount of employer liability for reimbursement to 30% of the employer's net worth. The 30% limit plainly contemplates the situation in which the employer has disclaimed direct liability; for if the employer were directly liable to the employees for the full amount of any funding deficiency, the 30% limitation would serve no useful purpose.31 That this 30% limit would be meaningless unless the employer has disclaimed direct liability surely demonstrates that Congress did not intend such a disclaimer to render otherwise vested benefits "forfeitable" within the meaning of § 4022.32 24 Petitioner's reading of the statute would limit any meaningful application of the insurance program prior to January 1, 1976, to only those cases involving insolvent employers that had not disclaimed direct liability. Since the legislative history clearly shows that Congress intended to cover terminations by solvent employers, and further shows that disclaimer clauses were widely used, petitioner is ultimately contending that Congress did not intend to create any significant employer reimbursement liability prior to January 1, 1976. This argument, however, is foreclosed by a consideration of the statutory provisions for successive increases in the burdens associated with plan terminations. Congress clearly did not offer employers an opportunity to make cost-free terminations at any time prior to January 1, 1976. Quite the contrary, one of the express purposes of ERISA was to discourage plan terminations. See n. 3, supra. III 25 We have previously noted the care with which Congress approached the problem of retroactivity in ERISA. See Los Angeles Dept. of Water & Power v. Manhart, 435 U.S., at 721-722, n. 40, 98 S.Ct., at 1382. Congress provided that Title IV should have an increasingly severe yet carefully limited impact on employers during four successive periods of time for single-employer plans. During each of these periods, however, it extended the same insurance protection to those beneficiaries of terminated plans having vested benefits under the terms of the plans. 26 Title IV became effective as soon as ERISA was enacted on September 2, 1974, § 4082(a), 29 U.S.C. § 1381(a), and indeed was expressly made partially retroactive in order to provide insurance coverage to participants whose plans terminated after June 30, 1974, § 4082(b), 29 U.S.C. § 1381(b). The measure of coverage, at the outset, was the difference between the employee's vested benefits under the terms of the plan (subject to the dollar limitations in § 4022(b)(3), see n. 23, supra ) and the amount that could be paid from the terminated plan's assets. However, the employer liability provision, § 4062, was not made effective at all during this initial period—June 30 to September 2, 1974. The PBGC was thus given no right to recover any part of the insured deficiencies from employers that terminated their plans before the Act became effective.33 27 The second period lasted for 270 days after the enactment of ERISA, or until the end of May 1975. Again, the PBGC provided insurance coverage for most underfunded nonforfeitable benefits under the terms of a pension plan terminated during this period. But two important additional provisions became effective: § 4062(b), the section creating employer liability to the PBGC, and § 4004(f)(4), 88 Stat. 1009, 29 U.S.C. § 1304(f)(4).34 The latter authorized the PBGC to waive entirely, or to reduce, its right to recover insurance payments from any employer who could establish unreasonable hardship in situations in which the employer was not able, as a practical matter, to continue its plan in effect. Section 4004(f)(4) unequivocally demonstrates that Congress had deliberately imposed a new liability upon an employer that terminated its plan during the first nine months of the operation of the Act. If the employer had a pre-existing contractual liability, there would have been no effective way for the PBGC to mitigate it in hardship cases, since the PBGC could not stop the employees from suing the employer directly. Moreover, there would have been no need for insurance except in cases of insolvency, and in such cases there would have been no practical reason for mitigation because recovery from the employer would have been impossible in any event. On the other hand, in the typical case in which the employer had protected itself from any contractual liability, the only possible source of employer liability was § 4062's provision for the recovery by the PBGC of insurance payments made on account of unsatisfied nonforfeitable benefits. Petitioner's definition of nonforfeitable benefits as excluding from Title IV coverage all benefits for which the employer is not directly liable would have made § 4004(f)(4) totally inapplicable in the only cases in which it could have possibly made any difference. 28 The third period lasted for about seven months until December 31, 1975, the termination date of petitioner's plan. Having terminated more than 270 days after the Act became effective, petitioner was not eligible for a hardship waiver. Its contingent liability, however, was smaller than it would have been had it terminated its plan in the fourth period. During the third period, the terms of the pension plan still measured the outer limits of the unfunded liability. Had petitioner waited another day to terminate, Title I's vesting standards would have become effective, thereby increasing the number of employees whose benefits would have become vested, see n. 6, supra, and therefore insurable under Title IV. Petitioner avoided this additional liability by terminating in the third period. 29 Under petitioner's reading of the statute, there was a much more dramatic difference between the third period and the fourth period than we have just described. The argument that an employer liability disclaimer clause renders a plan's benefits forfeitable has two draconian consequences: first, it makes the Title IV insurance program entirely inapplicable to most terminations before January 1, 1976; second, it makes such disclaimer clauses entirely invalid on and after that date. This latter conclusion flows directly from Title I's command that all covered pension plans provide nonforfeitable benefits on and after January 1, 1976. See n. 10, supra. 30 But Congress plainly did not intend to prevent employers from limiting their potential direct liability to their employees. There is not a word in the statute or its legislative history suggesting that Congress ever intended to outlaw the use of such clauses.35 On the contrary, the inclusion of a limit on an employer's contingent reimbursement liability to the PBGC measured by 30% of its net worth would be inexplicable if Congress had intended to deny employers any right to place a contractual limit on their direct liability to their employees. We stress that petitioner's construction of the statute would therefore render meaningless § 4062(b)'s 30% net worth limit on the employer's contingent liability to the PBGC for all terminations occurring after January 1, 1976. In light of the careful attention paid to when various provisions were to be effective, Congress surely would have made explicit any intent to limit this important provision to a mere transitionary role. It bears emphasis that Congress declined to adopt the suggestion that corporate assets be committed to guarantee any pension obligations which exist at termination.36 The 30% provision was designed as a softer measure.37 31 In sum, petitioner reads the statute as authorizing cost-free terminations prior to January 1, 1976, and full liability for all promised benefits thereafter with neither dollar nor net worth limitations. We are convinced that Congress envisioned a quite different scheme. Congress intended to discourage unnecessary terminations even during the phase-in period, and to place a reasonable ceiling on the potential cost of terminations during the principal life of the Act—the period after January 1, 1976. Although the impact of our holding on petitioner and others who lawfully terminated plans during the second half of 1975 may seem harsh, we have no doubt as to what Congress intended. We cannot give the statute a special reading for that brief period without distorting it for the remainder of its statutory life. Accordingly, the judgment is 32 Affirmed. 33 Mr. Justice STEWART, with whom Mr. Justice WHITE, Mr. Justice POWELL, and Mr. Justice REHNQUIST join, dissenting. 34 Title IV of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1301 et seq., establishes a system of insurance to cover the termination of private pension plans. Under that Title, the Pension Benefit Guaranty Corporation (PBGC) must "guarantee the payment of all nonforfeitable BENEFITS . . . UNDER THE TERMS OF A [COVERED] PLAN WHICH TERMINATES."1 In turn, the PBGC may sue the company that maintained the plan for such part of the "guaranteed" payment as exceeded on the date of termination the value of the plan's assets.2 35 The Nachman plan was terminated on December 31, 1975, several months after Title IV had become fully applicable to pension plans such as the one maintained by the petitioner.3 The issue in this case is, therefore, a narrow one: Whether, "under the terms of [the Nachman] plan," the plan's participants were entitled on the date of termination to "nonforfeitable benefits" in excess of the value of the funds that were then held by the plan.4 36 ERISA defines a "nonforfeitable benefit" as follows:5 37 "The term 'nonforfeitable' when used with respect to a pension benefit or right means a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan."6 38 No contention is made in this case that the benefits at issue did not arise from services rendered by the plan's participants. Rather, the petitioner's argument is that, in the words of the statute, "under the terms of [the Nachman] plan," the contested benefits were both "[c]onditional" and/or "legally [un]enforceable against the plan." 39 For present purposes, only two provisions of the now-terminated Nachman plan need be considered. First, a sentence in Art. V, § 3, stated: "Benefits provided for herein shall be only such benefits as can be provided by the assets of the Fund." Second, Art. X, § 3, stated: 40 "In the event of termination of the Plan, the assets then remaining in the Fund, after providing the accrued and anticipated expenses of the Plan and Fund . . . shall be allocated . . . to the extent that they shall be sufficient, for the purposes of paying retirement benefits. . . ." (Emphasis added.)7 41 These two provisions, neither of which was void on the date of termination,8 rendered "conditional" every defined benefit set out in the plan. On termination, a participant's right to any benefit defined in dollar terms was expressly hinged on the plan's ability to pay that amount. Like any condition a plan might specifically place on a participant's entitlement to a defined retirement benefit, this asset-sufficiency condition deprived the Nachman plan's defined benefits of "nonforfeitable" status to the extent that such benefits could not be defrayed by the plan's assets.9 The Court does not explain why an asset-sufficiency limitation expressly set out in a pension plan is not a "condition" for purposes of determining the "nonforfeitability" of the plan's pension benefits.10 42 By reason of the cited sentences in Art. V, § 3, and Art. X, § 3, it must also be concluded that the only defined benefits of the plan which on termination were "legally enforceable against the plan" were those that were fully funded. Under contract law, a person is liable only for that which he has promised to pay. The Nachman plan promised each participant that upon termination he would receive, not a particular retirement benefit defined in dollar terms, but rather such a benefit only if it could be funded out of the plan's assets. 43 The Court notes that another sentence in Art. V, § 3, of the plan provided that, "[i]n the event of termination of this Plan, there shall be no liability or obligation on the part of the Company to make any further contributions to the Trustee except such contributions, if any, as on the effective date of such termination, may then be accrued but unpaid." But this sentence had an entirely different effect from that of the two provisions discussed above. Since it only purported to limit the employer's liability to the plan and not the plan's obligation to the plan's participants, the sentence in question neither made the benefits provided by the plan "[c]onditional" nor rendered them "legally [un]enforceable against the plan." The Court is, therefore, quite correct in concluding that the sentence in question did not render "forfeitable" any of the retirement benefits provided by the Nachman plan.11 What the Court misses is the world of difference between the employer disclaimer clause and the provisions in the plan that limited what the plan itself promised to provide its participants. Only the latter made the retirement benefits "forfeitable" for purposes of ERISA.12 44 Three aspects of ERISA's legislative history strongly support this interpretation of the statutory scheme. First, Congress discarded on its way to passing the Act a number of alternative definitions of the benefits to be insured, several of which if enacted would have read very much like the definition the PBGC has adopted and which the Court now holds embodies Congress' true intent.13 Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 199-200, 95 S.Ct. 392, 400-01, 42 L.Ed.2d 378. 45 Second, the Conference Report, in describing the bill that finally was enacted, stated that "vested retirement benefits guaranteed by the plan . . . are to be covered" by the Act's insurance scheme. H.R.Rep.No.93-1280, p. 368 (1974), 3 Leg. Hist. 4635. (Emphasis added.) Only a benefit that is unconditionally promised by a plan is a benefit "guaranteed" by that plan.14 46 Third, Congress delayed the effective date of the Act's "minimum vesting standards" in order "to provide sufficient time for pension and profit-sharing retirement plans to adjust to the new vesting and funding standards, to make provision for additional costs which may be experienced, and to permit negotiated agreements to transpire. . . ." S.Rep.No.93-127, p. 36 (1973), U.S.Code Cong. & Admin.News 1974, p. 4872, 1 Leg. Hist. 622. Disregarding this intent, the Court today effectively rewrites the Nachman plan to make it promise more than it actually did. 47 Nothing in the legislative history, on the other hand, truly supports the result reached by the Court. The Court relies on the fact that the terms "nonforfeitable" and "vested" were often used interchangeably in the legislative materials. This usage is said to be significant, because in the pension field a benefit is usually said to "vest" when a pension plan participant has fulfilled all the specified conditions for eligibility, such as age and length of service. The existence of other kinds of conditions, such as the sufficiency of the plan's assets, would not affect the determination of whether or not a benefit had "vested" in this traditional sense of the word. 48 But many of the statements in the legislative history relied upon by the Court were made in connection with proposed bills that were not enacted and whose express terms would have insured benefits "vested" in the traditional sense of the word. See n. 13, supra. These statements have no bearing on the present case, which concerns the construction of entirely different statutory language. Many of the other statements in the legislative history noted by the Court were made with respect to the bill that originally passed the House of Representatives, quite a different document from the bill that later emerged from the Conference Committee and was enacted into law as ERISA. The House bill provided that the insurance provision would cover only retirement benefits that were "nonforfeitable" by reason of the bill's minimum vesting standards. H.R. 2, as passed by the House, 93d Cong., 2d Sess., §§ 203, 409(b)(1) (1974), 3 Leg. Hist. 3973-3979, 4024. See 2 id., at 3293, 3347-3348 (explanation by Chairman of House Committee on Education and Labor). Under the legislation so proposed, there never would have been a time when the insurance scheme was in effect and a substantial portion of every plan's "vested" benefits were not also "nonforfeitable." 49 It was the Conference Committee that created the time gap involved in this case (September 2, 1974, through December 31, 1975) during which pension plans were subject to the Act's insurance program but not to its minimum vesting standards. See H.R.Conf.Rep.No.93-1280, pp. 48, 245 (1974), 3 Leg. Hist. 4323, 4515. In discussing the Conference Committee bill, certain Members of Congress also equated "vested" rights with "nonforfeitable" rights.15 But there is no reason to suppose that these statements did not refer to the post-1975 operation of ERISA, when many benefits, "vested" in the traditional sense, also became "nonforfeitable" by reason of the Act's minimum vesting standards.16 50 Finally, contrary to the Court's assertion, the construction that I would give to the Act would not render meaningless the decision of Congress to make Title IV fully applicable as of September 2, 1974. That Title insured the following types of benefits provided by plans terminated between September 2, 1974, and December 31, 1975: (1) All benefits made expressly "nonforfeitable" by the terms of plans in existence on January 1, 1974;17 and (2) at least 20% of the benefits required by the Act's "minimum vesting standards" to be "nonforfeitable" under the terms of plans created after January 1, 1974.18 51 For all the reasons discussed, I respectfully dissent. 52 Mr. Justice POWELL, dissenting. 53 I join Mr. Justice STEWART's dissenting opinion and add only a brief word. The difference between the majority and dissenting opinions in this case turns almost entirely upon the construction of language in petitioner's pension plan. This plan is an agreement negotiated in good faith by the petitioner and the union representing employees covered by the plan. Everyone concedes that the plan is a valid contract enforceable according to its terms, except to the extent that ERISA provides otherwise. The petitioner lawfully terminated the plan on December 31, 1975. 54 It is perfectly clear, at least to me, that the plain language of the plan conditioned the employees' benefits in the event of termination upon the adequacy of the assets then remaining in the fund. If ERISA had not been enacted, the respondent acknowledges, the employees' benefits would have been limited by this condition. The respondent Pension Benefit Guaranty Corporation contends, however, that ERISA—and the respondent's own regulatory definition of "nonforfeitable"—require a construction of the plan that neither the petitioner nor its employees intended. I assume for present purposes that Congress could mandate this result. But in the absence of a clear expression of congressional intent, I would not conclude that Congress meant to alter contractual arrangements between private parties. For the reasons stated in the dissenting opinion, I find no such intent relevant to this case in either the ambiguous language of ERISA or its legislative history. 55 I add only that the decision today has little consequence beyond the resolution of this case. As I read the opinions, the decision affects only pension plans terminated on or before December 31, 1975, that contained language substantially identical to the language in petitioner's plan. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 Title I of ERISA, § 2 et seq., 29 U.S.C. § 1001 et seq., requires administrators of all covered pension plans to file periodic reports with the Secretary of Labor, mandates minimum participation, vesting and funding schedules, establishes standards of fiduciary conduct for plan administrators, and provides for civil and criminal enforcement of the Act. Title II, ERISA § 1001 et seq., amended various provisions of the Internal Revenue Code of 1954 pertaining to qualification of pension plans for special tax treatment, in order, among other things, to conform to the standards set forth in Title I. Title III, ERISA §§ 3001-3042, 29 U.S.C. § 1201 et seq., contains provisions designed to coordinate enforcement efforts of different federal departments, and provides for further study of the field. And, most relevant in this case, Title IV, ERISA §§ 4001-4082, 29 U.S.C. § 1301 et seq., created the Pension Benefit Guaranty Corporation (PBGC) and a termination insurance program to protect employees against the loss of "nonforfeitable" benefits upon termination of pension plans that lack sufficient funds to pay such benefits in full. 2 That section provides, in part: "Subject to the [dollar] limitations contained in subsection (b) [see n. 23, infra ], the [PBGC] shall guarantee the payment of all nonforfeitable benefits (other than benefits becoming nonforfeitable solely on account of the termination of a plan) under the terms of a plan which terminates at a time when section 4021 applies to it." 88 Stat. 1016. 3 Section 4002(a), 88 Stat. 1004, 29 U.S.C. § 1302(a), provides: "There is established within the Department of Labor a body corporate to be known as the Pension Benefit Guaranty Corporation. In carrying out its functions under this title, the corporation shall be administered by the chairman of the board of directors in accordance with policies established by the board. The purposes of this title, which are to be carried out by the corporation, are "(1) to encourage the continuation and maintenance of voluntary private pension plans for the benefit of their participants, "(2) to provide for the timely and uninterrupted payment of pension benefits to participants and beneficiaries under plans to which this title applies, and "(3) to maintain premiums established by the corporation under section 4006 at the lowest level consistent with carrying out its obligations under this title." 4 Section 4062(b), 88 Stat. 1029, 29 U.S.C. § 1362(b), provides in part: "Any employer to which this section applies shall be liable to the corporation, in an amount equal to the lesser of— "(1) the excess of— "(A) the current value of the plan's benefits guaranteed under this title on the date of termination over "(B) the current value of the plan's assets allocable to such benefits on the date of termination, or "(2) 30 percent of the net worth of the employer. . . ." In other words, the employer must reimburse the PBGC for payments made from PBGC funds to cover nonforfeitable benefits to the extent that the pension fund was unable to pay them, but in no event is the employer liable to the PBGC for more than 30% of its net worth. 5 Like the plan described in Alabama Power Co. v. Davis, 431 U.S. 581, 593, n. 18, 97 S.Ct. 2002, 2009, 52 L.Ed.2d 595, "[p]etitioner's plan is a 'defined benefit' plan, under which the benefits to be received by employees are fixed and the employer's contribution is adjusted to whatever level is necessary to provide those benefits. The other basic type of pension is a 'defined contribution' plan, under which the employer's contribution is fixed and the employee receives whatever level of benefits the amount contributed on his behalf will provide." ERISA's termination insurance program does not apply to defined contribution plans, see § 4021(b)(1), 29 U.S.C. § 1321(b)(1), for the reason that under such plans, by definition, there can never be an insufficiency of funds in the plan to cover promised benefits. 6 ERISA § 211(b)(2), 29 U.S.C. § 1061(b)(2). The provision for vesting of normal and early retirement rights after 10 years of service would have complied with the new standards unless, as petitioner argues, the clause disclaiming direct liability of the employer for benefits not sufficiently covered by the pension fund prevented the benefits from being "nonforfeitable" within the meaning of ERISA § 3(19), 29 U.S.C. § 1002(19). See discussion in n. 10, and Part III, infra, at 384-385. 7 Persons employed by the company when the plan was created were entitled to credit for their prior years of employment in calculating both their eligibility for pensions and the amount of their benefits on retirement. 8 By quoting only the first of these two sentences, Mr. Justice STEWART's dissenting opinion creates the impression that this provision is part of the plan's definition of benefits. Reading the two sentences together, however, makes it clear that the provision is simply a typical disclaimer of employer liability for any deficiency in the assets of the fund. Mr. Justice STEWART's dissenting opinion quotes at length from Art. X, § 3, the plan provision determining the order of distribution of fund assets upon termination. Post, at 389-390, n. 7. Again, that provision does not purport to be a part of the definition of benefits, but simply provides a schedule for the distribution of benefits upon termination. Moreover, the dissent is quite wrong in stating that this distribution provision may have become illegal after December 31, 1975, post, at 390, n. 8. If that provision has been superseded, it was by § 4044, 29 U.S.C. § 1344, see n. 32, infra, which became effective on September 2, 1974. 9 Brief for Petitioner 28. 10 The definition section of Title I, § 3, 88 Stat. 833, 836, 29 U.S.C. § 1002, provides that "[f]or purposes of this title: . . . . . "(19) The term 'nonforfeitable' when used with respect to a pension benefit or right means a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan. For purposes of this paragraph, a right to an accrued benefit derived from employer contributions shall not be treated as forfeitable merely because the plan contains a provision described in section 203(a)(3)." Section 203(a)(3), 29 U.S.C. § 1053(a)(3), also part of Title I, provides that the right to accrued benefits shall not be treated as forfeitable merely because the plan provides that they are not payable under certain specified conditions, such as the death or temporary re-employment of the participant. None of the listed conditions relates to insufficient funding. Section 203(a) is a central provision in ERISA. It requires generally that a plan treat an employee's benefits, to the extent that they have vested by virtue of his having fulfilled age and length of service requirements no greater than those specified in § 203(a)(2), as not subject to forfeiture. A provision in a plan which purports to sanction forfeiture of vested benefits for any reason, other than one listed in subsection (a)(3), would violate this section after January 1, 1976, its effective date. Thus, if we were to accept petitioner's argument that the limitation of direct liability clause renders the vested benefits forfeitable within the meaning of the Title I definition, that clause would be invalid after January 1, 1976. 11 592 F.2d at 958. 12 "Perhaps the most important facts distinguishing ERISA from the Minnesota statute in Allied Structural Steel [Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727] are those revealing the Congressional attempt to moderate the impact of the liability imposed. Title IV provisions represent a rational attempt to impose liability only to the extent necessary to achieve the legislative purpose. Congress concluded that it was necessary to insure unfunded vested benefits and established a federal corporation for that purpose. However, it was also determined that it would not be possible to maintain an effective insurance program without imposing some liability on employers. The abuses employer liability was designed to cure included terminations motivated by a desire to avoid the continued burden of funding. III Legislative History at 4741 (remarks of Sen. Williams); II Legislative History at 3382 (remarks of Rep. Gaydos). Congress was also concerned that without the risk of liability, employers might use promises of higher retirement benefits for bargaining leverage, knowing that the PBGC would be required to fulfill the promise. S.Rep. No. 93-383, I Legislative History at 1155. It was also believed that to impose liability would cause employers to assume a more responsible funding schedule. II Legislative History at 1873 (remarks of Sen. Griffin). These first two considerations would not have been relevant in the Minnesota scheme because no agency was established to assume primary responsibility for the payment of benefits. "Acknowledging that employers on the verge of bankruptcy would be unlikely to terminate pension plans solely to take advantage of termination insurance, Congress provided net worth limitations on the amount of potential liability. 29 U.S.C. § 1362. Congress also devised other provisions to temper the burdens imposed. Employers will not necessarily be liable for the full amount of benefits promised in the plan, since Congress set a level on the amount of benefits guaranteed. 29 U.S.C. § 1322(b)(3). In Section 1323 Congress required the PBGC to provide optional insurance to an employer who desires to protect against this contingent liability. Finally, Title IV grants the PBGC discretion to arrange reasonable terms for the payment of liability. 29 U.S.C. § 1367. Thus Title IV of ERISA, unlike the statutes invalidated under Due Process or the Contract Clause does have 'limitations as to time, amount, circumstances, [and] need.' W. B. Worthen Co. v. Thomas, 292 U.S. [426,] at 434, 54 S.Ct. [816,] at 819, [78 L.Ed. 1344]. "The record supporting the enactment of ERISA, wholly unlike that present in Allied Structural Steel, demonstrates that 'the presumption favoring "legislative judgment as to the necessity and reasonableness of a particular measure" ' must be allowed to govern here. 438 U.S., at 247, 98 S.Ct., at 2724. Turner Elkhorn Mining v. Usery, 428 U.S. [1,] at 18, 19, 96 S.Ct. 2882 [49 L.Ed.2d 752]; Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). Title IV of ERISA satisfies Nachman's rights to Due Process." 592 F.2d, at 962-963 (footnotes omitted). 13 See, e. g., Rescue Army v. Municipal Court, 331 U.S. 549, 568-569, 67 S.Ct. 1409, 1419-20, 91 L.Ed. 1666. 14 The argument that the definition of "nonforfeitable" in § 3 (19) is directly applicable only in Title I is reinforced by the fact that Title I definitions are occasionally expressly incorporated by reference in Title IV. See, e. g., § 4021(a)(1), 29 U.S.C. § 1321(a)(1), which provides in part, "this section applies to any plan . . . which, for a plan year . . . is an employee pension benefit plan (as defined in paragraph (2) of section 3 of this Act). . . . " This specific incorporation suggests that Title I definitions do not apply elsewhere in the Act of their own force, though they may otherwise reflect the meaning of the terms defined as used in other Titles. 15 For example, the bill originally introduced in the House defined "nonforfeitable pension benefit" as "a legal claim obtained by a participant or his beneficiary to that part of an immediate or deferred pension benefit, which notwithstanding any conditions subsequent which could affect receipt of any benefit flowing from such right, arises from the participant's service and is no longer contingent on continued service." H.R. 2, 93d Cong., 1st Sess., § 3(20) (1973), 1 Legislative History of the Employee Retirement Income Security Act of 1974, 94th Cong., 2d Sess., 12 (Comm.Print 1976) (hereinafter Leg.Hist). 16 See nn. 24-27, infra. 17 The dissenting opinions rely entirely on the form of the contractual provision protecting the employer against liability beyond its agreed contributions. Thus, if instead of stating that the benefits "shall be only such benefits as can be provided by the assets of the fund" the plan had said the benefits "shall only be recoverable from the assets of the fund," the dissenters would presumably agree that the benefits would be insured under Title IV. Nothing in the statute or its legislative history suggests that Congress intended the rights of the employees to hinge on any such purely formal difference between two plan provisions that would have precisely the same legal significance apart from the statute. Indeed, under the dissenters' reading of the plan provision, insurance coverage would be unavailable regardless of the reason for the fund's inability to pay the vested benefits in full; whether the shortage resulted from insolvency of the employer, a defalcation by the trustees of the fund, or the unilateral termination before the plan was fully funded, Title IV insurance would be simply unavailable. In the text, we explain at length why a clause limiting an employer's liability does not make otherwise vested benefits forfeitable within the meaning of the Act. The dissenters do not question the validity of any part of that explanation. Since what Mr. Justice STEWART describes as an "asset-sufficiency limitation," post, at 391, in the context of this case, is merely an example of such a clause, our explanation applies with full force to that formulation. Merely to assert that there is a "world of difference" between two forms of employer protection without considering whether there is any reason to believe Congress intended such a difference to govern the availability of insurance protection for employees —is an unacceptable approach to the problem of statutory construction presented by this case. Understandably, the dissenting opinions do not suggest that there is anything in the legislative history of ERISA to support the view that the availability of insurance coverage should turn on the form of a plan provision disclaiming employer liability for unfunded benefits. 18 The definition promulgated by the PBGC states that "a benefit payable with respect to a participant is considered to be nonforfeitable, if on the date of termination of the plan the participant (or beneficiary) has satisfied all of the conditions required of him under the provisions of the plan to establish entitlement to the benefit, except the submission of a formal application, retirement, [or] the completion of a required waiting period. . . . " 29 C.F.R. § 2605.6(a) (1979). Petitioner all but concedes that it loses if this definition accurately reflects the meaning of "nonforfeitable" in Title IV. Petitioner argues, in a footnote in its brief, that the word, "payable," modifies "benefit" in such a way as to exclude the benefits under its plan since liability of the employer to pay them was expressly disclaimed. If that is what the PBGC intended when it promulgated its definition, it has certainly chosen a strangely vague manner of making that intent known. 19 The Treasury Department's definition of "nonforfeitable," 26 C.F.R. § 1.411(a)-4(a) (1979), provides in part: "Rights which are conditioned upon a sufficiency of plan assets in the event of a termination or partial termination are considered to be forfeitable because of such condition. However, a plan does not violate the nonforfeitability requirements merely because in the event of a termination an employee does not have any recourse toward satisfaction of his nonforfeitable benefits from other than the plan assets or the Pension Benefit Guaranty Corporation." Because we read petitioner's plan as containing only an employer liability disclaimer clause, this case is clearly governed only by the second quoted sentence of the regulation. Moreover, we assume this accords with the Treasury Department's views, since the PBGC's brief was approved by the Treasury Department. See also n. 36, infra. Of course, a provision in a plan which is construed as a condition, the failure of which would cause a forfeiture, would be invalid after January 1, 1976. See n. 10, supra. 20 Cf., e. g., E. I. du Pont de Nemours & Co. v. Collins, 432 U.S. 46, 55, 97 S.Ct. 2229, 2234, 53 L.Ed.2d 100. 21 The quotation is from a statement by Senator Bentsen, the member of the Senate Committee on Finance most active in sponsoring ERISA, reprinted in 3 Leg.Hist. 4793. 22 See, e. g., the following statement by Senator Williams, a sponsor of the Senate version of ERISA: "Another reason why so many employees have found their pension expectations to be illusory is that the employer may shut down, and if there are insufficient funds to meet the vested claims of the participants, they have no recourse. "A classic case, of course, is the shutdown of Studebaker operations in South Bend, Ind., in 1963, with the result that 4,500 workers lost 85 percent of their vested benefits because the plan had insufficient assets to pay its liabilities. "While this was a spectacularly tragic instance, it was by no means unique. Last year, for example, P. Ballantine and Sons, a substantial contributor to a multiemployer plan, sold its operations and withdrew from the plan. "Because the plan did not have sufficient assets to cover vested liabilities, several hundred employees, with as many as 30 years service, will lose a substantial portion of their vested benefits. "These, of course, are by no means isolated cases. According to a recently-issued study by the Departments of Labor and Treasury, over 19,000 workers lost vested benefits last year because of the termination of insufficiently funded plans." 2 Leg.Hist. 1599-1600. 23 Section 4022(b)(3), 88 Stat. 1017, 29 U.S.C. § 1322(b)(3), provides: "The amount of monthly benefits described in subsection (a) provided by a plan, which are guaranteed under this section with respect to a participant, shall not have an actuarial value which exceeds the actuarial value of a monthly benefit in the form of a life annuity commencing at age 65 equal to the lesser of— "(A) his average monthly gross income from his employer during the 5 consecutive calendar year period (or, if less, during the number of calendar years in such period in which he actively participates in the plan) during which his gross income from the employer was greater than during any other such period with that employer determined by dividing 1/12 of the sum of all such gross income by the number of such calendar years in which he had such gross income, or "(B) $750 multiplied by a fraction, the numerator of which is the contribution and benefit base (determined under section 230 of the Social Security Act) in effect at the time the plan terminates and the denominator of which is such contribution and benefit base in effect in calendar year 1974. "The provisions of this paragraph do not apply to non-basic benefits." In other words, Title IV generally limits guaranteed benefits to a worker's average monthly wage over the worker's best five years with the employer or $750 per month (adjusted for cost of living), whichever is lower. The last quoted sentence reflects that the PBGC is authorized to guarantee the payment of greater benefits, but is not required to do so. See § 4022(c), 29 U.S.C. § 1322(c). 24 See, e. g., S.Rep.No.93-127, pp. 2, 24 (1973), U.S.Code Cong. & Admin.News 1974, p. 4639, 1 Leg.Hist. 588, 610; H.R.Rep.No.93-533, pp. 2, 14, 25 (1973) U.S.Code Cong. & Admin.News 1974, p. 4639, 2 Leg.Hist. 2349, 2361, 2372; Summary of Differences between the Senate and the House Version of H.R. 2, pp. 7-9 (1974), in 3 Leg.Hist. 5213-5215; H.R.Conf.Rep.No.93-1280, p. 368 (1974), U.S.Code Cong. & Admin.News 1974, p. 4639, 3 Leg.Hist. 4635: "Under the conference substitute [which was adopted by both Houses], vested retirement benefits guaranteed by the plan (other than benefits vesting only because of the termination) are to be covered to the extent of the insurance limitations. . . ." Mr. Justice STEWART's dissent acknowledges this language from the Conference Report, post, at 393, but draws an unsupportable inference from it. He emphasizes that it is only " 'vested retirement benefits guaranteed by the plan ' " that are insured. The emphasized language was used by the Conference Committee, however, not to describe the nature of vested benefits that were to be insured under Title IV, but to distinguish the rejected narrower House provision, under which only those benefits that Title I of ERISA required to be vested would be insured. H.R.Conf.Rep.No.93-1280, supra, at 368, 3 Leg.Hist. 4635. See also 592 F.2d, at 954, n. 9. Thus, the quoted language, which tracks the language of § 4022 verbatim except that "vested" is used in place of "nonforfeitable"—merely underscores the intent to insure all vested benefits. 25 Brief for Petitioner 28-29: "the Congressional history shows the use of the word 'vested' interchangeably with the word 'nonforfeitable'. . . ." See also the definition contained in S. 4 as reported on April 18, 1973, § 3(26), 1 Leg.Hist. 494-495, which, when proposed, applied to the entire Act including the termination insurance provisions: " 'Nonforfeitable right' or 'vested right' means a legal claim obtained to that part of an immediate or deferred life annuity which notwithstanding any conditions subsequent which could affect receipt of any benefit flowing from such right, arises from the participant's covered service under the plan, and is no longer contingent on the participant remaining covered by the plan." In that same version of the bill, the predecessor of § 4022 stated that the "insurance program shall insure participants . . . against loss of benefits derived from vested rights. . . ." S. 4 § 402(a), 1 Leg.Hist. 532. There is no explanation in the legislative history for the substitution of "nonforfeitable" for "vested." Since it is clear from the remainder of the legislative history that "vested" benefits were to be insured, we view the substitution of "nonforfeitable" for "vested" as formal only. The Court of Appeals' explanation for the substitution is plausible: "The substitution of terms might be explained by reference to the testimony of members from the Department of Labor at the hearings. The Department testified in 1973 that 'there is a problem of defining the accrued benefit which will be insured. . . . [W]e probably need to get some consistency between accrued benefits definition for purposes of Internal Revenue as well as for purposes of termination insurance.' Hearings before the Subcommittee on Private Pension Plans of the Senate Committee on Finance, 93rd Cong., 1st Sess., Part I at 437. Senate Bentsen responded with some interest in consistent definitions, although emphasizing it was vested benefits Congress intended to insure. Id., at 443. The Internal Revenue Code used the word 'nonforfeitable,' rather than 'vested,' in its regulation of plan terminations pre-ERISA. See Treas.Reg. § 1.401-6 (1963)." 592 F.2d, at 955, n. 10. 26 There is a Title I definition of "vested liabilities," which provides that, "[t]he term 'vested liabilities' means the present value of the immediate or deferred benefits available at normal retirement age for participants and their beneficiaries which are nonforfeitable." ERISA § 3(25), 88 Stat. 837, 29 U.S.C. § 1002(25). Although, as noted earlier, see n. 14, supra, Title I definitions are not directly applicable to Title IV, it suffices to say that the synonymous use of "vested" and "nonforfeitable" in this definition as well as throughout the legislative history does not make any easier petitioner's task of distinguishing the two terms for Title IV purposes. 27 "Under the pre-ERISA terminology, one author clarified that although benefit claims in fact were conditioned on the availability of funds in the trust, they were not to be considered conditional rights: " 'In a basic contradiction to the pure legal concept of vesting, the Benefit under a pension plan that is described as vested, is, in the usual case . . . contingent . . . upon survival . . . [and] upon the availability of assets in the plan. In principle, however, this is no different from some other types of vested property rights such as those embodied in bonds and promissory notes that may not be honored at maturity because of the financial condition of the promisor. In essence, therefore, the vesting of a pension benefit simply means that the realization of the benefit is no longer contingent upon the individual's remaining in the service of the employer to normal retirement age.' "D. McGill, Preservation of Pension Benefit Rights, 6 (1972). See also Departments of Treasury and Labor, Study of Pension Plan Terminations 1972, 19 (1973)." 592 F.2d, at 953-954. 28 See S.Rep.No.92-634, Interim Report of Activities of the Private Welfare and Pension Plan Study, 1971, Senate Committee on Labor and Public Welfare, p. 74 (1972): "Employers ordinarily have no financial responsibility for pension payments beyond the contributions they are committed to make." See also remarks of Representative Erlenborn, 2 Leg.Hist. 3388: "At the present time the legal foundation of pension plans is that the employer sets up a pension trust and promises to make periodic contributions into that trust. If there are sufficient assets, the employee will get the pension that has been described; if there are not, he does not get it; he gets something less. But the employer up until the present time generally has not made a promise to pay the pension, only to make periodic contributions." Cf. S.Rep.No.93-127, p. 10 (1973), U.S.Code Cong. & Admin.News 1974, p. 4846, 1 Leg.Hist. 596, noting that some "critics have proposed that corporate assets be committed to guarantee any pension obligations which exist at termination," which implies that the problem was largely due to the absence of any direct guarantee by the employer. That proposal was not adopted. Congress opted instead for the insurance system run by the PBGC, with limited employer liability over to the PBGC. Cf. also Affidavit of Joseph E. Ellinger, Director of the Office of Program Operations of the PBGC: "Since September 2, 1974, the PBGC has assumed liability for approximately 136 insufficient pension plans terminating on or before December 31, 1975. . . . Of these plans, approximately 78 have limitation-of-liability provisions like the pension plan involved in this lawsuit." App. 74. 29 Under petitioner's view, unless the employer is directly liable, the benefits are uninsured. Accepting that view, it would only be in a case in which an employer is insolvent that the insurance program would make any practical difference, since otherwise the employee could sue the employer directly. 30 See remarks of Senator Williams following the conference, 3 Leg.Hist. 4741-4742: "Since there would be a possibility of abuse by solvent employers who terminate a plan and shift the financial burden to the insurance program, notwithstanding their own financial ability to continue funding the plan, the conference bill imposes liability on employers whose plans terminate, to reimburse the program for benefits paid by the corporation. This liability extends to 30 percent of the employer's net worth." Congress was not acting in a vacuum. The threat of terminations of underfunded plans by solvent employers was quite real. In a 1972 study of pension plan terminations, published in 1973 by the Department of the Treasury and Labor, it was reported, p. 55, that "the great majority of claimants with losses, including high-priority claimants, are in plans of employers whose net worth substantially exceeds benefit losses." Indeed, "[o]ver-all, only 3 percent of claimants with losses were in plans where employer net worth was less than the value of benefits lost while 71 percent of the claimants with losses were in plans where employer net worth was at least 1,000 percent of claimant losses." Id., at 61. This study was repeatedly relied on by Congress. See, e. g., S.Rep.No.93-127, p. 10 (1973), 1 Leg.Hist. 596; remarks of Senator Williams, n. 22, supra ; remarks of Representative Thompson, one of the House conferees on the final bill, 3 Leg.Hist. 4665. The 30% limitation reflects the fear expressed during the debates that if too great a burden is placed directly on employers, growth of pension plans would be discouraged. See remarks of Representative Erlenborn, 2 id., at 3403. 31 If the employer pays the unfunded portion of the benefits, there would be no need for insurance and, of course, no need for any reimbursement at all. On the other hand, if the employer is liable to the employees but has insufficient assets to pay the full benefits, there obviously would be insufficient funds to reimburse the PBGC and the 30% limit would therefore be irrelevant. 32 Another indication that benefits are not forfeitable within the meaning of Title IV solely because the employer has disclaimed direct liability is § 4044, 29 U.S.C. § 1344, which establishes the priority scheme for allocation of assets upon termination. The fifth priority is "all other nonforfeitable benefits under the plan." That implies that the four prior categories all involve nonforfeitable benefits as well, as one might expect. Subsection (b)(2) states the rule that if the assets "are insufficient to satisfy in full the benefits of all individuals [in any of the first four categories], . . . the assets shall be allocated pro rata among such individuals on the basis of present value (as of the termination date) of their respective benefits. . . ." Since this section thus contemplates that there may be insufficient funds in the plan to pay nonforfeitable benefits, it must be that benefits are not to be classified as forfeitable solely because there are insufficient funds to pay them. And it would make no sense administratively to provide for automatic pro rata distribution, as this section does, unless no additional funds are expected directly from the employer. If the employer is directly liable, it would make more sense to make any pro rata distribution after adding to the assets of the fund whatever funds could be gleaned directly from the employer. Therefore, this section indicates that Congress thought that benefits may be nonforfeitable even if an employer has disclaimed direct liability. 33 Since a disclaimer clause would protect an employer from liability to its employees, and since there was no contingent liability to the PBGC on account of terminations during this initial period in any event, it is difficult to identify a rational basis for conditioning the availability of plan termination insurance in this period on the absence of a disclaimer clause. 34 "(f) In addition to its other powers under this title, for only the first 270 days after the date of enactment of this Act the corporation may— . . . . . "(4) waive the application of the provisions of sections 4062, 4063, and 4064 to, or reduce the liability imposed under such sections on, any employer with respect to a plan terminating during that 270 day period if the corporation determines that such waiver or reduction is necessary to avoid unreasonable hardship in any case in which the employer was not able, as a practical matter, to continue the plan." 35 Indeed, since their use has unquestionably contributed to the growth of private pension plans, their prohibition would be inconsistent with Congress' repeatedly expressed intent to encourage the maintenance of pension plans. 36 See n. 28, supra. The Internal Revenue Service has included an employer liability disclaimer clause in a model pension plan issued for guidance in drafting post-1976 plans. See CCH 1977 Pension Plan Guide ¶ 30,782.96. 37 Further, under the reading of the statute we adopt, in the usual case an employer could not be liable for underfunded benefits beyond the dollar limitations on PBGC insurance payments. See n. 23, supra. But if an employer liability disclaimer clause were to be deemed invalid after January 1, 1976, those limits would not be applicable to protect the employer in lawsuits by employees brought directly against it. 1 Title 29 U.S.C. § 1322(a) more fully provides: "[The PBGC] shall guarantee the payment of all nonforfeitable benefits (other than benefits becoming nonforfeitable solely on account of the termination of a plan) under the terms of a plan which terminates at a time when section 1321 of this title applies to it." Section 1322(b) limits the amounts which the PBGC must so guarantee in respects not at issue here. 2 29 U.S.C. § 1362(b)(1): "Any employer [who maintained a plan at the time it was terminated, see § 1362(a) and the exceptions provided therein] shall be liable to the corporation, in an amount equal to . . .— "(1) the excess of— "(A) the current value of the plan's benefits guaranteed under this subchapter on the date of termination over "(B) the current value of the plan's assets allocable to such benefits on the date of termination. . . ." A company's liability under § 1362(b)(1) may not, however, exceed "30 percent of the net worth of the employer determined as of a day, chosen by the [PBGC] but not more than 120 days prior to the date of termination, computed without regard to any liability under this section." § 1362(b)(2). 3 See 29 U.S.C. § 1381(a) ("The provisions of this subchapter take effect on September 2, 1974"). 4 If the answer to this inquiry is no, then under Title IV of ERISA the petitioner owes nothing to the PBGC. On the other hand, if the answer is yes, then the petitioner must pay the PBGC the amount by which the plan's "nonforfeitable benefits" exceeded on the termination date the value of the plan's assets, subject, of course, to the 30%-of-net-worth limitation contained in 29 U.S.C. § 1362(b)(2) and the limitations set out in § 1322(b). 5 29 U.S.C. § 1002(19). As the Court notes, § 1002 states that the definitions set out therein are "[f]or purposes of [Title I]." That the § 1002(19) definition of "nonforfeitable benefit" is not expressly made applicable to Title IV appears, however, to be attributable to nothing but inadvertence. In the bill that passed the House and was sent to the Conference Committee, the minimum vesting provisions and the termination insurance provisions were located under one Title. See H.R. 2, as passed by the House, 93d Cong., 2d Sess. (Table of Contents) (1974), 3 Leg. Hist. 3898-3899. The definition of "nonforfeitable" now contained in § 1002(19) was made applicable to that entire Title. H.R. 2, § 3 (1974), 3 Leg. Hist. 3903. The Conference Committee split the minimum vesting provisions and the termination insurance provisions into two separate Titles. As the definitional section had always been situated at the front of the minimum vesting provisions, it naturally followed those provisions into Title I of the bill as enacted into law. It would severely strain credulity to infer from these events that Congress decided to leave to pure chance the proper definition of "nonforfeitable" for purposes of Title IV. "Nonforfeitable" is used in Title I as a term of art. Congress used the same word in critical portions of Title IV. Had it intended "nonforfeitable" to carry one meaning in Title I and another in Title IV Congress would presumably have said so, particularly since the two Titles were considered and enacted in tandem and were meant to function as an interrelated system of protection. Title IV, however, sets out no separate definition of "nonforfeitable," even though that Title does contain a few definitions of its own. Furthermore, the Act's legislative history reveals no suggestion that the word's import should differ as between Title I and Title IV. It follows that, insofar as the PBGC's own definition of "nonforfeitable," see 29 CFR § 2605.6(a) (1979), departs from § 1002(19), it must be rejected. Nothing in the Act or its legislative history reflects a congressional intent to give the PBGC the authority to define the scope of its own entitlement to employer assets. House and Senate bills and debates are reprinted, along with the House, Senate, and Conference Reports, in a three-volume Committee Print entitled Legislative History of the Employee Retirement Income Security Act of 1974, Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess. (1976) (cited supra and hereafter as Leg. Hist.). 6 The Court asserts that the language contained in § 1002(19)—"which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan" modifies "claim" not "benefit." I disagree. The definition reads: "The term 'nonforfeitable' . . . means a claim . . . to that part of a . . . benefit . . . which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan." (Emphasis supplied.) But whether the operative language modifies "claim" or "benefit" would seem irrelevant for present purposes, in any event. 7 Article X, § 3, of the Plan more fully provided: "In the event of termination of the Plan, the assets then remaining in the Fund, after providing the accrued and anticipated expenses of the Plan and Fund, (including without limitation, expenses of terminating the Plan), shall be allocated by the Board [of Administration] on the basis of present actuarial values to the extent that they shall be sufficient, for the purposes of paying retirement benefits (the amount of which shall be computed on the basis of Credited Service to the date of termination of the Plan) in the following order or precedence: "(a) To provide their retirement benefits to persons who shall have been Retired Employees and entitled to current benefits under the Plan prior to its termination, without reference to the order of retirement; "(b) To provide Normal Retirement Benefits to Employees aged 65 or over on the date of termination of the Plan, without reference to the order in which they shall have reached age 65; "(c) . . .. "(d) . . .. "(e) . . .. "(f) . . .. "If, after having made provision in the above order of precedence for some but not all of the above categories, the assets then remaining in the Fund are not sufficient to provide completely for the benefits for Employees in the next category, such benefits shall be provided for each such Employee on a pro-rata basis." (Emphasis added.) Contrary to the Court's suggestion, nothing in 29 U.S.C. § 1344 (allocation of assets of terminated defined-benefit plans) operated in any way to void the asset-sufficiency language of this provision in the Nachman plan. Section 1344 simply changed the order in which the assets held by the Nachman plan had to be allocated on termination to the plan's participants. 8 The provisions would have been illegal after December 31, 1975, to the extent that they conflicted with the "minimum vesting standards" that came into effect for plans like the Nachman plan on January 1, 1976. See 29 U.S.C. § 1061(b)(2). Those standards mandate that covered pension plans provide their participants with specified levels of "nonforfeitable" benefits. See § 1053. All covered plans must, for instance, "provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age." In addition, a covered plan must provide employees who have participated in the plan for certain periods of time with specified minimum "nonforfeitable" percentages of their accrued benefits. The Nachman plan—as a "defined benefit plan," see 29 U.S.C. §§ 1002(23), (34), (35); Alabama Power Co. v. Davis, 431 U.S. 581, 593, n. 18, 97 S.Ct. 2002, 2009, 52 L.Ed.2d 595—could not, after January 1, 1976, have continued to promise its fully vested participants a "nonforfeitable" right only to that part of their "accrued benefit" which could be funded by the plan. See 29 U.S.C. §§ 1002(23), (34), (35), 1053, 1054. 9 As the Chairman of the House Committee on Education and Labor explained with regard to an earlier bill's definition of "nonforfeitable" almost identical to that contained in 29 U.S.C. § 1002(19) as finally enacted: "The definition of the term 'nonforfeitable' is intended to preclude any conditions to receipt of vested benefits other than those noted in the definition." 2 Leg. Hist. 3306 (statement of Rep. Perkins) (emphasis supplied). 10 To the extent that the PBGC's own self-serving definition in 29 CFR § 2605.6(a) (1979) points in a different direction, it conflicts with the statute and can be accorded no weight. See n. 5, supra. 11 Correspondingly, I agree that the sentence did not affect in any way the petitioner's liability to the PBGC under 29 U.S.C. § 1362(b). The sentence in question purported only to absolve the petitioner of liability to the plan's trustee for asset shortfalls. Had the sentence also attempted to protect the petitioner from its liability to the PBGC under § 1362(b), it would presumably have been void to that extent. 12 I also agree, however, with the Court's conclusion that nothing in ERISA nullifies clauses that protect employers from direct liability to plan participants for deficiencies in plan assets. 13 For instance, the bill originally passed by the Senate insured retirement benefits that were "nonforfeitable" under the terms of the plan. H.R. 2, as passed by the Senate, 93d Cong., 2d Sess., § 422(a) (1974), 3 Leg. Hist. 3702. Only one definition of "nonforfeitable" was contained in the bill. This provided that a "nonforfeitable benefit" was a benefit "which, notwithstanding any, conditions subsequent which would affect receipt of any benefit flowing from such right, arises from the participant's covered service under the plan and is no longer contingent on the participant remaining covered by the plan." Id., § 502(a)(20), 3 Leg. Hist. 3745. See also S. 4, 93d Cong., 1st Sess., §§ 3(26), 3(35), 401(b), 402(a), 502(a)(20) (1973) (bill as reported by Senate Committee on Labor and Public Welfare), 1 Leg. Hist. 494-495, 497, 532, 543; S. 4, 93d Cong., 1st Sess., §§ 3(26), 3(35), 401(b), 402(a), 502(a)(20) (1973) (bill as originally introduced in Senate), 1 Leg. Hist. 103, 105, 137, 148. Similarly, the bill reported to the House on October 2, 1973, by the House Committee on Education and Labor provided termination insurance for "vested liabilities." See H.R. 2, as amended, §§ 401(b), 402(a), 404(b) (1973), 2 Leg. Hist. 2320, 2320-2321, 2325. Under the bill, "vested liabilities" were defined as "the present value of the immediate or deferred benefits available at regular retirement age for participants and their beneficiaries which are nonforfeitable and which are no longer contingent on continued service or any other obligation to the employer, sponsoring organization or other party in interest." H.R. 2, as amended, § 3(25), 2 Leg. Hist. 2256. In turn, the bill defined "nonforfeitable benefit" as a benefit "which arises from the participant's service and is no longer contingent on continued service or any other obligation to the employer, sponsoring organization, or other party in interest." H.R. 2, as amended, § 3(19), 2 Leg. Hist. 2251-2252. 14 See also 3 Leg. Hist. 4668 (Rep. Dent) (Termination insurance "will provide a backup guarantee to every pension plan that, regardless of the economic fortunes of the companies sponsoring the plan, its obligations will be met." (Emphasis supplied.)). 15 See, e. g., 3 Leg. Hist. 4734, 4735, 4741 (Sen. Williams); id., at 4752, 4758 (Sen. Javits); id., at 4800 (Sen. Nelson); id., at 4678 (Rep. Ullman); id., at 4694 (Rep. Brademas); id., at 4702 (Rep. Tiernan). 16 The Court's theory that the term "nonforfeitable" as used in ERISA means no more than "vested" in the traditional sense must fail on an additional account. According to the definition of "vested" cited by the Court, "the Benefit under a pension plan that is described as vested, is, in the usual case . . . contingent . . . upon survival . . . of the individual involved to the earliest date at which he can validly claim a pension. Thus, the right can be terminated by death. After retirement, each monthly, payment is contingent upon survival of the individual. . . ." D. McGill, Preservation of Pension Benefit Rights 6 (1972). Under the Court's theory, therefore, a benefit that is contingent on survival is by definition "nonforfeitable." But were this the case, 29 U.S.C. § 1053(a)(3)(A) would be wholly superfluous. That section provides that "[a] right to an accrued benefit derived from employer contributions shall not be treated as forfeitable solely because the plan provides that it is not payable if the participant dies (except in the case of a survivor annuity which is payable as provided in section 1055 of this title)." The fact that Congress felt it necessary to include this provision in the Act must be given weight in determining the proper meaning of "nonforfeitable." 17 For instance, had the Nachman plan simply not contained the provisions in Art. V, § 3, and Art. X, § 3, discussed above, it would have promised its participants a defined monthly benefit that was "nonforfeitable." The petitioner would then have been liable to the PBGC for whatever portion of those benefits were "guaranteed" by the PBGC pursuant to 29 U.S.C. § 1322 and exceeded the value of the plan's assets on termination. This liability would have been unaffected by the fact that a clause in the plan absolved the petitioner of any personal obligation to the plan's participants or to the plan's trustee. 18 Title 29 U.S.C. § 1061(a) provides that the "minimum vesting standards" of Title I of ERISA are applicable beginning September 2, 1974, to pension plans set up after January 1, 1974. Title 29 U.S.C. § 1322(b)(8) states that "nonforfeitable" benefits provided by a plan that has been in effect for less than five years are "guaranteed" to the extent of 20% or $20 per month (whichever is greater) for each year of plan existence.

78

446 U.S. 274 100 S.Ct. 1673 64 L.Ed.2d 284 AMERICAN EXPORT LINES, INC., Petitioner,v.Gilberto ALVEZ et al. No. 79-1. Argued Feb. 26, 1980. Decided May 12, 1980. Syllabus After filing suit in a New York state court against petitioner shipowner to recover damages, on grounds of negligence and unseaworthiness, for personal injuries sustained while working aboard petitioner's vessel in New York waters, respondent husband sought leave to amend his complaint to add his spouse as a plaintiff for loss of society. The trial court denied the motion to amend, but the Appellate Division of the New York Supreme Court reversed and granted the motion to amend, reasoning that the case was controlled by Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9, which held that, under the nonstatutory maritime wrongful-death remedy, the widow of a longshoreman mortally injured aboard a vessel in state territorial waters could recover damages for the loss of her deceased husband's society. The New York Court of Appeals affirmed. Held : The judgment is affirmed. Pp. 277-286 (opinion of BRENNAN, J.); P. 286 (opinion of POWELL, J.). 46 N.Y.2d 634, 415 N.Y.S.2d 979, 389 N.E.2d 461, affirmed. Mr. Justice BRENNAN, joined by Mr. Justice WHITE, Mr. Justice BLACKMUN, and Mr. Justice STEVENS, concluded: 1. The Court of Appeals' judgment upholding the legal tenability of the wife's claim for loss of society, although not "final" or within a categorical exception to strict finality when originally entered, will, as a practical matter, be treated as falling within such exception, where, after certiorari was granted in this Court, the case, including the loss-of-society claim was tried and respondent husband prevailed, the appeal from the trial verdict will not challenge the element thereof awarding damages for loss of society, and no federal issue other than whether the wife has a cause of action under general maritime law for loss of society remains. Pp. 277-279. 2. General maritime law authorizes the wife of a harbor worker injured nonfatally aboard a vessel in state territorial waters to maintain an action for damages for the loss of her husband's society. Although Sea-Land Services, Inc. v. Gaudet, supra, upheld a claim for loss of society in the context of a wrongful-death action, it provides the conclusive decisional recognition of a right to recover for such loss, there being no apparent reason to differentiate between fatal and nonfatal injuries in authorizing the recovery of damages for loss of society. Nor is the reach of Gaudet § principle limited by the fact that no right to recover for loss of society due to maritime injury has been recognized by Congress under the Death on the High Seas Act or the Jones Act. Neither statute embodies an "established and inflexible" rule foreclosing recognition of a claim for loss of society by judicially crafted general maritime law. Pp. 279-286. Mr. Justice POWELL, while believing that Sea-Land Services, Inc. v. Gaudet, supra, was decided wrongly, concurred in the judgment because he saw no rational basis for drawing a distinction between fatal and nonfatal injuries. P. 286. Stephen K. Carr, New York City, for petitioner. Paul C. Matthews, New York City, for respondents. Mr. Justice BRENNAN announced the judgment of the Court and delivered an opinion, in which Mr. Justice WHITE, Mr. Justice BLACKMUN, and Mr. Justice STEVENS joined. 1 Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), held that under the nonstatutory maritime wrongful-death action fashioned by Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the widow of a longshoreman mortally injured aboard a vessel in state territorial waters could recover damages for the loss of her deceased husband's "society."1 The question in this case is whether general maritime law authorizes the wife of a harbor worker injured nonfatally aboard a vessel in state territorial waters to maintain an action for damages for the loss of her husband's society. We conclude that general maritime law does afford the wife such a cause of action. 2 * Respondent Gilberto Alvez lost an eye while working as a lasher aboard petitioner's vessel §§ Export Builder in New York waters. He commenced an action for damages against petitioner in the New York Supreme Court on grounds of negligence and unseaworthiness.2 Leave to amend respondent's complaint to add his spouse as a plaintiff for loss of society was denied by the New York Supreme Court, Special Term, on the authority of Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257 (CA2 1963), cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964), in which the Court of Appeals for the Second Circuit ruled that an injured longshoreman's wife was not entitled to compensation for loss of her husband's society. App. to Pet. for Cert. A1. The Appellate Division of the New York Supreme Court reversed, and granted Alvez' motion to amend, reasoning that Gaudet, rather than Igneri, was controlling authority. 59 App.Div.2d 883, 399 N.Y.S.2d 673 (1st Dept. 1977). Upon certification (App. to Pet. for Cert. A6-A7), the New York Court of Appeals agreed that the vitality of Igneri had been sapped by Gaudet and by other developments in the law, and held that Mrs. Alvez should be permitted to maintain her claim for loss of society under maritime law. 46 N.Y.2d 634, 389 N.E.2d 461, 415 N.Y.S.2d 979 (1979).3 We granted certiorari. 444 U.S. 924, 100 S.Ct. 261, 62 L.Ed.2d 180 (1979). We affirm. II 3 At oral argument, the Court raised, sua sponte, the question whether this case fell within the Court's statutory jurisdiction to review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had . . . ." 28 U.S.C. § 1257. 4 The question is a close one. The New York Court of Appeals order granting leave to amend the complaint was only the predicate to a decision on the merits of the claim for loss of society; that order, therefore, is not "final" in the strict sense of a decree that leaves nothing further to be addressed by the state courts. Nor does the Court of Appeals judgment, as originally entered, readily fit into any of the categorical exceptions to strict finality which the Court has developed in construing § 1257. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-487, 95 S.Ct. 1029, 1036, 1042, 43 L.Ed.2d 328 (1975).4 Thus, were the case in the posture in which it stood when the petition for certiorari was filed, we might well determine that the judgment lacked sufficient characteristics of finality to warrant an assertion of our appellate jurisdiction. 5 Since the writ of certiorari was granted, however, this case including the claim for loss of society—has been tried and respondent Alvez has prevailed. Tr. of Oral Arg. 7-8. Counsel for petitioner American Export Lines has informed the Court at oral argument that petitioner's appeal from the trial verdict against it will not challenge that element of the verdict which awarded damages for loss of society to Mrs. Alvez. Id., at 10, 41-42.5 Furthermore, it is conceded that no federal question, except that which we are now asked to resolve, remains in the litigation. Id., at 6.6 6 So far as respondent's wife's claim for loss of society is concerned, it thus appears that "the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings." Cox Broadcasting, supra at 480, 95 S.Ct. at 1038, see Radio Station WOW v. Johnson, 326 U.S. 120, 123-127, 65 S.Ct. 1475, 1477-1480, 89 L.Ed.2d 92 (1945). As a practical matter, then, we conclude that the judgment below upholding the legal tenability of Mrs. Alvez' claim falls—at present—within a categorical exception to strict finality.7 "[N]ow that the case is before us . . . the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the case back with those issues undecided." Gillespie v. United States Steel Corp., 379 U.S. 148, 153, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). III 7 In Igneri v. Cie. de Transports Oceaniques, the Court of Appeals for the Second Circuit rejected the loss-of-society claim of a longshoreman's wife in a maritime personal injury action. The Igneri opinion was carefully constructed within the framework of then-applicable doctrines governing maritime remedies. At the time, there was no clear decisional authority sustaining a general maritime law right of recovery for loss of society. 323 F.2d, at 265-266; compare Savage v. New York, N. & H. S. S. Co., 185 F. 778, 781 (CA2 1911) (adopting opinion of Hough, District Judge) (dictum), with New York & Long Branch Steamboat Co. v. Johnson, 195 F. 740 (CA3 1912). It was also thought established, as Igneri stated, "that the damages recoverable by aeaman'an's widow suing for wrongful death under the Jones Act do not include recovery for loss of consortium," 323 F.2d, at 266 (emphasis added); see Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913). Too, it was far from evident that the rule of Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), entitling a longshoreman to maintain an action for unseaworthiness, would extend to permit recovery for loss of society by his spouse. 323 F.2d, at 267-268. Thus, the principles of maritime law prevalent in 1963 militated against, rather than supported, the creation of a right to recover for loss of society in Igneri. 8 The Court recognizes that the Government has the burden of proving that Ms. Mendenhall consented to accompany the officers, but it nevertheless holds that the "totality of evidence was plainly adequate" to support a finding of consent. right to recover for loss of society that Igneri found lacking. 9 To be sure, Gaudet upheld a claim for loss of society in the context of a wrongful-death action. But general federal maritime law is a source of relief for a longshoreman's personal injury, Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 412-414, 74 S.Ct. 202, 206-207, 98 L.Ed. 143 (1953), just as it is a source of remedy for wrongful death, Moragne, supra. Within this single body of judge-formulated law, there is no apparent reason to differentiate between fatal and nonfatal injuries in authorizing the recovery of damages for loss of society. The vitality of the longshoreman is logically irrelevant once we have accepted the principle that injury suffered by a longshoreman's spouse from loss of society should be compensable, when proved. Nothing intrinsic to the Gaudet rule, therefore, should cabin its application to wrongful death.8 10 Petitioner argues that the reach of Gaudet § principle must be limited by the fact that no right to recover for loss of society due to maritime injury has been recognized by Congress under § 2 of the Death on the High Seas Act (DOHSA), 46 U.S.C. § 762; see Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 620, 98 S.Ct. 2010, 2012, 56 L.Ed.2d 581 (1978), or the Jones Act, 46 U.S.C. § 688. But it is a settled canon of maritime jurisprudence that " 'it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.' " Moragne v. States Marine Lines, supra, at 387, 90 S.Ct., at 1781, quoting, with approval, The Sea Gull, 21 F.Cas. 909, 910 (No. 12,578) (CC Md.1865); accord, Sea-Land Services, Inc. v. Gaudet, supra, at 583, 94 S.Ct., at 814. Plainly, neither statute embodies an "established and inflexible" rule here foreclosing recognition of a claim for loss of society by judicially crafted general maritime law. 11 DOHSA comprehends relief for fatal injuries incurred on the high seas, 46 U.S.C. § 761. To be sure, Mobil Oil Corp. v. Higginbotham, supra, construed DOHSA to forbid general maritime law supplementation of the elements of compensation for which the Act provides. But Higginbotham never intimated that the preclusive effect of DOHSA extends beyond the statute's ambit. To the contrary, while treating the statutory remedies for wrongful deaths on the high seas as exclusive, Higginbotham expressly reaffirmed that Gaudet governs recoveries for wrongful deaths on territorial waters. 436 U.S., at 623-625, 98 S.Ct., at 2014-2015; see Moragne, supra, 398 U.S., at 397-398, 90 S.Ct., at 1785-1786. And if DOHSA does not pre-empt general maritime law where fatalities occur within territorial waters, it follows a fortiori that the Act does not exclude federal maritime law as a source of relief for nonfatal injuries upon the same waters. 12 Nor do we read the Jones Act as sweeping aside general maritime law remedies. Notwithstanding our sometime treatment of longshoremen as pseudo-seamen for certain Jones Act purposes, International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926); cf. Seas Shipping Co. v. Sieracki, supra, at 100-102, 66 S.Ct., at 880-881,9 the Jones Act does not exhaustively or exclusively regulate longshoremen's remedies, see Moragne, 398 U.S., at 395-396, and n. 12, 90 S.Ct., at 1784-1785 and n. 12; Pope & Talbot, Inc. v. Hawn, supra, at 413-414, 74 S.Ct., at 207; Igneri, 323 F.2d, at 266.10 Furthermore, the Jones Act lacks such preclusive effect even with respect to true seamen; thus, we have held that federal maritime law permits the dependents of seamen killed within territorial seas to recover for violation of a duty of seaworthiness that entails a stricter standard of care than the Jones Act. Moragne, supra, at 396, n. 12, 90 S.Ct., at 1785, n. 12; see Gilmore & Black, supra n. 9, at 367-368. 13 Apart from the question of statutory pre-emption, the liability schemes incorporated in DOHSA and the Jones Act should not be accorded overwhelming analogical weight in formulating remedies under general maritime law. The two statutes were enacted within days to address related problems—yet they are "hopelessly inconsistent with each other." Gilmore & Black, supra n. 9, at 359; see id., at 360-367. The Jones Act itself was not the product of careful drafting or attentive legislative review, id., at 277, 327; assuming that the statute bars damages for loss of society, it does so solely by virtue of judicial interpretation of the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., which was incorporated into the Jones Act, see, e. g., Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 526 (CA5 1979) (en banc), cert. pending, No. 79-1228. Thus, a remedial omission in the Jones Act is not evidence of considered congressional policymaking that should command our adherence in analogous contexts. And we have already indicated that "no intention appears that the [Death on the High Seas] Act have the effect of foreclosing any nonstatutory federal remedies that might be found appropriate to effectuate the policies of general maritime law." Moragne, supra, 398 U.S., at 400, 90 S.Ct., at 1787; Gaudet, 414 U.S., at 588, n. 22, 94 S.Ct., at 816, n. 22. 14 Far more persuasive at the present juncture are currently prevailing views about compensation for loss of society. Cf. Sea-Land Services, Inc. v. Gaudet, supra, 414 U.S., at 587-588, 94 S.Ct., at 816. As the Court of Appeals observed in Igneri : 15 "At least this much is true. If the common law recognized a wife's claim for loss of consortium, uniformly or nearly so, a United States admiralty court would approach the problem here by asking itself why it should not likewise do so . . . ." 323 F.2d, at 260. 16 At the time Igneri was decided, governing law in the relevant jurisdictions was substantially divided over the wife's right to recover for loss of consortium. Id., at 260-264. But the state of the law is very different today. Currently, a clear majority of States permit a wife to recover damages for loss of consortium from personal injury to her husband.11 Furthermore, even in Igneri § day, the general accepted rule allowed a husband to gain damages for loss of consortium with his tortiously injured wife, id., at 260; so "clearly authorized" a common-law principle would have been translated into maritime law by the Igneri analysis, id., at 260, 267. And if Igneri implies that a husband may collect compensation under maritime law for loss of consortium with his injured wife, it follows that the same relief is due the wife who suffers a comparable loss because of wounds suffered by her husband, see, e. g., Duncan v. General Motors Corp., 499 F.2d 835 (CA10 1974); cf. Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). 17 Admiralty jurisprudence has always been inspirited with a "special solicitude for the welfare of those men who under[take] to venture upon hazardous and unpredictable sea voyages." Moragne v. States Marine Lines, supra, at 387, 90 S.Ct., at 1780. As in Moragne and Gaudet, "[o]ur approach to the resolution of the issue before us . . . [is] consistent with the extension of this 'special solicitude' to the dependents of [seafarers] . . . ." Gaudet, supra, 414 U.S., at 577, 94 S.Ct., at 811. The decision of the New York Court of Appeals is 18 Affirmed. 19 THE CHIEF JUSTICE concurs in the judgment. 20 Mr. Justice POWELL, concurring in the judgment. 21 I continue to believe that Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 595, 94 S.Ct. 806, 819, 39 L.Ed.2d 9 (1974) (POWELL, J., dissenting), was decided wrongly, but I recognize the utility of stare decisis in cases of this kind, id., at 596, 94 S.Ct., at 820. Since I see no rational basis for drawing a distinction between fatal and nonfatal injuries, I join in the judgment of the Court. 22 Mr. Justice MARSHALL, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST join, dissenting. 23 After certiorari has been granted, and a case has been briefed and argued, there is an inevitable pressure to decide it, especially when the argument for a dismissal is based on the seemingly technical requirements of finality. In this case, however, it is plain to me that the decision below is not final, and that the Court is therefore without jurisdiction to review it under 28 U.S.C. § 1257. 24 Respondent Gilberto Alvez brought suit against petitioner in the New York Supreme Court for injuries incurred during the course of his employment on petitioner's vessel. He moved to amend the complaint to add his spouse, Juanita Alvez, as a plaintiff. His motion was denied. The Appellate Division of the New York Supreme Court reversed, and the New York Court of Appeals affirmed the decision of the Appellate Division. This Court granted certiorari to review the decision of the New York Court of Appeals. 25 After certiorari had been granted, and while the case was being briefed in this Court, the litigants proceeded to try the case in the New York Supreme Court. Two weeks before the case was argued here, Gilberto Alvez received a jury verdict against petitioner in the sum of $500,000, and Juanita Alvez received $50,000. In oral argument before this Court, counsel for petitioner indicated that petitioner is appealing the judgment on grounds of improper jury instructions.1 If petitioner's appeal is successful, it seems plain that both verdicts will be reversed. 26 In these circumstances, I am unable to accept the Court's conclusion that the decision below is final. Nothing in the record before us supports the suggestion that " 'the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings.' " Ante, at 279, quoting Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 480, 95 S.Ct. 1029, 1038, 43 L.Ed.2d 328 (1975). The federal issue may neither survive nor require decision if petitioner is successful in future state-court proceedings. Therefore, the finality requirement of § 1257 precludes us from deciding the case. Cf. Southern Pacific Co. v. Gileo, 351 U.S. 493, 76 S.Ct. 952, 100 L.Ed. 1357 (1956); Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 S.Ct. 972, 92 L.Ed. 1212 (1948). 27 Even if I were to accept the unfounded premise that the federal issue will necessarily survive, I would not agree that the order of the New York Court of Appeals was rendered final by developments subsequent to the grant of certiorari. The plurality apparently concedes that when we granted certiorari, the New York Court of Appeals' order allowing leave to amend was not appealable. Ante, at 277. After that order was entered, the procedural posture of the case was the same as if the trial court had granted leave to amend in the first place. Such an order would not, of course, have been final; in the plurality's own words, it "was only the predicate to a decision on the merits of the claim for loss of society." Ibid. If this reasoning is correct, I do not believe that a subsequent trial—conducted after we have granted certiorari—can vest jurisdiction in this Court. I have been unable to find any case, and the plurality points to none, that supports the apparent adoption of a contrary rule. Indeed, our cases appear uniformly to assume that finality is determined as of the time that certiorari is sought. See Department of Banking v. Pink, 317 U.S. 264, 268, 63 S.Ct. 233, 235, 87 L.Ed. 254 (1942).2 28 For three reasons, the plurality's conclusion to the contrary strikes me as fundamentally misguided. First, it sanctions the practice of granting certiorari to review nonfinal orders, and thus treats the finality requirement as merely a policy to be considered in deciding whether we should resolve a dispute. The finality requirement, of course, is no such thing; it determines whether we have the power to render a decision. Jurisdictional prerequisites cannot be disregarded simply because it seems more economical for the Court to decide the case. Second, it encourages litigants to seek review of non-final judgments in the hope that subsequent events will render them final. Such a practice only retards the speedy resolution of disputes and multiplies the burdens of litigation. Finally, and most disturbing, today's decision encourages litigants and lower courts to proceed to try a case in which this Court has granted certiorari and which is simultaneously being briefed and argued in this Court. That result cannot easily coexist with one of the basic principles on which our judicial system is premised, that two courts cannot have jurisdiction over the same case at the same time. See 9 J. Moore, B. Ward, J. Lucas, Moore's Federal Practice § 203.11 (1975), and cases cited. The necessity for adhering to that rule in these circumstances is plainly suggested by the waste of judicial resources that would result if the Court decided to reverse the Court of Appeals and thus to render the trial court proceedings with respect to Juanita Alvez a complete nullity. 29 It should always be remembered that the "considerations that determine finality . . . have reference to very real interests not merely those of the immediate parties but, more particularly, those that pertain to the smooth functioning of our judicial system." Republic Natural Gas Co. v. Oklahoma, supra, 334 U.S., at 69, 68 S.Ct., at 977. Accordingly, the Court's salutary adoption of a "practical rather than a technical construction" of the finality requirement, Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949), is not a license for ignoring the requirement entirely, or for interpreting it without regard for its legitimate underlying purposes. The finality requirement "serves several ends: (1) it avoids piecemeal review of state court decisions; (2) it avoids giving advisory opinions in cases where there may be no real 'case' or 'controversy' in the sense of Art. III; (3) it limits review of state court determinations of federal . . . issues to leave at a minimum federal intrusion in state affairs." North Dakota Pharmacy Bd. v. Snyder's Stores, 414 U.S. 156, 159, 94 S.Ct. 407, 410, 38 L.Ed.2d 379 (1973). See also Republic Natural Gas Co. v. Oklahoma, supra; Radio Station WOW v. Johnson, 326 U.S. 120, 123-124, 65 S.Ct. 1475, 1477-1478, 89 L.Ed. 2092 (1945). All of these purposes may be jeopardized by the decision today. We can have no assurance that there are not other federal issues in the case that will reach the Court at some point in the future. The decision the Court announces may be entirely advisory if the appellate courts in New York rule in favor of the petitioner. And principles of federalism counsel against reviewing the decision of the New York courts prematurely and without any necessity for doing so. 30 In my view, the proper disposition in these circumstances would be to dismiss the writ of certiorari as improvidently granted, and to permit the state courts to resolve the pending appeal. If the federal question still survives after the judgment of the highest state court becomes final, petitioner may again seek a writ of certiorari to review that judgment. I dissent. 1 "The term 'society' embraces a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection." Sea-Land Services, Inc. v. Gaudet, 414 U.S., at 585, 94 S.Ct., at 815. 2 Alvez' injury was sustained before the effective date of the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. Petitioner also impleaded Alvez' employer, Joseph Vinal Ship Maintenance, Inc., for indemnification. 3 Since Gaudet, one Federal Court of Appeals has expressly aligned itself with the Igneri rule, Christofferson v. Halliburton Co., 534 F.2d 1147 (CA 5), rehearing en banc denied, 542 F.2d 1174 (1976), and a number of state and federal district courts have divided on the issue, compare, e. g., Pesce v. Summa Corp., 54 Cal.App.3d 86, 126 Cal.Rptr. 451 (1975), and Giglio v. Farrell Lines, Inc., 424 F.Supp. 927 (SDNY 1977), appeal denied, No. 77-8014 (CA2, 1977), with Davidson v. Schlussel Reederei KG, 295 So.2d 700 (Fla.App. 1974), and Westcott v. McAllister Bros., Inc., 463 F.Supp. 1039 (SDNY 1978). 4 See Note, The Finality Rule for Supreme Court Review of State Court Orders, 91 Harv.L.Rev. 1004 (1978). 5 "Question: Mr. Carr [attorney for petitioner], what happens if the appellate division reverses? "Mr. Carr: If the appellate division reverses, it would not reverse on the question of Juanita Alvez's claim for consortium. If the appellate division reverses, it would probably reverse on— "Question: Correct. "Mr. Carr:—instructions to the jury that may have been—. "Question: Then the appellate division leaves that intact, the $50,000, right? "Mr. Carr: Yes, sir. * * * * * "Question: Could I ask you if the New York court system has finally disposed of this federal issue of the right of the wife? "Mr. Carr: The New York state court system has finally disposed of the issue of the right of the wife. "Question: You have lost at trial? "Mr. Carr: Well, I don't like to put it that way. "Question: Well, judgment has gone against you, your client? "Mr. Carr: There is judgment against my client. "Question: Well, on the consortium issue the judgment has gone against your client? "Mr. Carr: Yes, indeed it has, Your Honor. "Question: And that issue has not—if you want to appeal in the state court system, the right of the wife is not subject to relitigation, is it? "Mr. Carr: The right of the wife is final as far as the New York state court system is concerned. "Question: Except as to amount, I suppose. "Mr. Carr: Except as to amount. "Question: Conceivably a reviewing court might reduce it. "Mr. Carr: With respect to excessiveness, that is so. But as far as the wife's right of consortium, that right is final in the state courts and cannot be relitigated in that forum. * * * * * "Mr. Carr: The appellate division would say this is res judicata, this has been decided by the New York state Court of Appeals and does not permit you to pursue the matter further." 6 The dissent argues, post, at 287, n. 1, that petitioner's counsel's assertion that the New York courts would not reverse Mrs. Alvez' trial victory, Tr. of Oral Arg. 10, is contradicted by statements of respondent Alvez' counsel indicating or implying that American Export Lines "might find some grounds for error in the record," id., at 21; see id., at 20. But respondent Alvez' counsel could have said nothing else: since he is not representing petitioner American Export Lines, respondent Alvez' attorney could hardly have conceded any element of petitioner's case in the state courts. What is relevant, then, is petitioner's counsel's answer to this Court that "the appellate division . . . would not reverse on the question of Juanita Alvez's claim for consortium. . . . [The New York courts] would leave it intact." Id., at 10. Since American Export Lines' counsel was aware of this Court's concerns, it is fair to read this response as a concession by counsel—who was in a position to know his client's strategy in the state courts—that Mrs. Alvez' claim was no longer in jeopardy. 7 Our ruling on finality only extends, of course, to Mrs. Alvez' claim for loss of society, since we do not understand counsel for petitioner to concede that the other claims tried are beyond challenge. The fact that these other claims are nonfinal, however, need not preclude us from considering the final determination as to Mrs. Alvez' claim. Cf. Gillespie v. United States Steel Corp., 379 U.S. 148, 153, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). 8 Gaudet § discussion of the issue of double liability did state: "[D]ecedent's recovery did not include damages for the dependents' loss of services or of society, and funeral expenses. Indeed, these losses—unique to the decedent's dependents—could not accrue until the decedent's death." 414 U.S., at 591-592, 94 S.Ct., at 818. In Christofferson v. Halliburton Co., 534 F.2d, at 1150, the Court of Appeals for the Fifth Circuit inferred from that passage an intention to limit Gaudet to the wrongful-death context. But no such limitation is implicit. As a matter of logic, Gaudet 's statement that double liability is precluded in wrongful-death cases is not equivalent to the proposition that only wrongful-death cases preclude double liability. Moreover, the Gaudet opinion itself noted that damages may be assessed for loss of society in personal injury cases, 414 U.S., at 589-590, 94 S.Ct., at 817, see Christofferson, supra, at 1153-1154 (Freeman, J., dissenting). 9 Haverty was largely, if not completely, superseded by the Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C. § 901 et seq. See Swanson v. Marra Bros., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946). But see G. Gilmore & C. Black, The Law of Admiralty 330, 454-455 (2d ed. 1975). Sieracki has been overtaken by the 1972 Amendments to the Longshoremen's Act. See Gilmore & Black, supra, at 449. 10 Respondent Joseph Vinal Ship Maintenance, Inc., the interests of which parallel petitioner's, has advanced the argument that recovery for loss of society is barred by the Longhsoremen's and Harbor Workers' Compensation Act as applicable at the time of the injury—i. e., before the 1972 Amendments. It does not appear that this contention was raised below; in any event, it has no merit. Whatever the limitations on recovery against employers under the pre-1972 LHWCA, longshoremen retained additional rights based upon the warranty of seaworthiness. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); cf. Sea-Land Services, Inc. v. Gaudet, supra. 11 Forty-one States and the District of Columbia allow recovery by a wife or couple: Swartz v. United States Steel Corp., 293 Ala. 439, 304 So.2d 881 (1974); Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974); Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972); Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41 (1957); Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 (1974); Colo.Rev.Stat. § 14-2-209 (1973); Hopson v. St. Mary's Hospital, 176 Conn. 485, 408 A.2d 260 (1979); Yonner v. Adams, 3 Storey 229, 53 Del. 229, 167 A.2d 717 (1961); Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811 (1950); Gates v. Foley, 247 So.2d 40 (Fla.1971); Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga.App. 519, 77 S.E.2d 24 (1953); Nishi v. Hartwell, 52 Haw. 188, 473 P.2d 116 (1970); Nichols v. Sonneman, 91 Idaho 199, 418 P.2d 562 (1966); Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881 (1960); Troue v. Marker, 253 Ind. 284, 252 N.E.2d 800 (1969); Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d 480 (1956); Kan.Stat.Ann. § 23-205 (Supp.1979); Kotsiris v. Ling, 451 S.W.2d 411 (Ky.1970); Me.Rev.Stat.Ann., Tit. 19, § 167-A (Supp.1979); Deems v. Western Maryland R. Co., 247 Md. 95, 231 A.2d 514 (1967); Diaz v. Eli Lilly & Co., 364 Mass. 153, 302 N.E.2d 555 (1973); Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960); Thill v. Modern Erecting Co., 284 Minn. 508, 170 N.W.2d 865 (1969); Miss.Code Ann. § 93-3-1 (1972); Novak v. Kansas City Transit, Inc., 365 S.W.2d 539 (Mo.1963); Duffy v. Lipsman-Fulkerson & Co., 200 F.Supp. 71 (Mont.1961) (applying Montana law); Luther v. Maple, 250 F.2d 916 (CA8 1958) (applying Nebraska law) (semble); General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972); N.H.Rev.Stat.Ann. § 507:8-a (1968); Ekalo v. Constructive Serv. Corp., 46 N.J. 82, 215 A.2d 1 (1965); Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897 (1968); Clouston v. Remlinger Oldsmobile Cadillac, Inc., 22 Ohio St.2d 65, 258 N.E.2d 230 (1970); Okla.Stat., Tit. 32, § 15 (Supp.1979); Ore.Rev.Stat. § 108.010 (1975); Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974); Mariani v. Nanni, 95 R.I. 153, 185 A.2d 119 (1962); Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669 (1959); Tenn.Code Ann. § 25-109 (Supp.1979); Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978); Vt.Stat.Ann., Tit. 12, § 5431 (Supp.1979); W.Va.Code § 48-3-19a (1976); Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 150 N.W.2d 137 (1967). See also Sea-Land Services, Inc. v. Gaudet, 414 U.S., at 587, 94 S.Ct., at 816; see generally W. Prosser, Law of Torts 895-896 (4th ed. 1971). 1 In oral argument counsel for petitioner stated that the Appellate DIVISION MAY "REVERSE ON . . . INSTRUCTIONS TO THE JURY. . . ." tr. of Oral Arg. 10. I see no basis for the suggestion that "petitioner's appeal from the trial verdict against it will not challenge that element of the verdict which awarded damages for loss of society to Mrs. Alvez." Ante, at 277-278. In context it seems plain that counsel's comments on the award to Juanita Alvez were designed to indicate that there was no separate appeal with respect to the award on her behalf. But there was no suggestion that petitioner is not challenging the determination of liability as to Mr. Alvez, from whose award his spouse's is wholly derivative. The assertion that Juanita Alvez' award is final is contradicted by the suggestion of counsel for respondent Alvez that "if there is a problem," the parties might "[w]aive any right to appeal as far as the decision, as far as the judgment for Juanita Alvez is concerned below." Tr. of Oral Arg. 20. Counsel conceded that, in the absence of such a waiver, "there is always the possibility that the defendant in this case might find some grounds for error in the record." Id., at 21. The offer of a waiver of appellate rights and the concession that "some grounds for error" might be found are difficult to reconcile with the suggestion that further state-court proceedings cannot affect the award to Juanita Alvez. At the very least, the comments of counsel are highly ambiguous, and it seems odd for the plurality to indulge in very possibly incorrect speculations on the point when jurisdictional prerequisites are at stake. 2 On occasion, of course, subsequent events can deprive the Court of jurisdiction over a case, as for example by rendering it moot. For reasons discussed in the text, however, I see no justification, either in precedent or in principle, for the view that subsequent events can justify a grant of certiorari to review a decision over which the Court had no jurisdiction in the first instance.

78

446 U.S. 335 100 S.Ct. 1708 64 L.Ed.2d 333 Julius T. CUYLER, Superintendent, etc., et al., Petitioners,v.John SULLIVAN. No. 78-1832. Argued Feb. 20, 1980. Decided May 12, 1980. Syllabus * Two privately retained lawyers represented respondent and two others charged with the same murders. Respondent, who was tried first, made no objection to the multiple representation. The defense rested at the close of the prosecutor's case, and respondent was convicted. The two codefendants later were acquitted at separate trials. Respondent then sought collateral relief under Pennsylvania law, alleging that he had not received effective assistance of counsel because his lawyers represented conflicting interests. After a hearing at which both defense lawyers testified, the Pennsylvania Court of Common Pleas denied relief. The Pennsylvania Supreme Court affirmed, finding no multiple representation and concluding that the decision to rest the defense was a reasonable trial tactic. Respondent next sought habeas corpus relief in Federal District Court, but the court accepted the Pennsylvania Supreme Court's conclusion that respondent's lawyer did not represent the other defendants and further concluded that respondent had adduced no evidence of a conflict of interest. The Court of Appeals for the Third Circuit reversed. It held that the participation of the two lawyers in all three trials established as a matter of law that both lawyers represented all three defendants, and that the possibility of conflict among the interests represented by these lawyers established a violation of respondent's Sixth Amendment right to counsel. Held: 1. The Court of Appeals did not exceed the proper scope of review when it rejected the Pennsylvania Supreme Court's conclusion that the two lawyers had not undertaken multiple representation. The Pennsylvania court's conclusion was a mixed determination of law and fact not covered by 28 U.S.C. § 2254(d), which provides that a state court's determination after a hearing on the merits of a factual issue shall be presumed to be correct. Pp. 341-342. 2. A state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. If a defendant's retained counsel does not provide the adequate legal assistance guaranteed by the Sixth Amendment, a serious risk of injustice infects the trial itself. When the State obtains a conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty. Thus, there is no merit to petitioner's claim that failings of retained counsel cannot provide the basis for federal habeas corpus relief. Pp. 342-345. 3. Respondent is not entitled to federal habeas corpus relief upon showing that the state trial court failed to inquire into the potential for conflicts of interest and that his lawyers had a possible conflict of interests. Pp. 345-350. (a) The Sixth Amendment requires a state trial court to investigate timely objections to multiple representation. But unless the state trial court knows or reasonably should know that a particular conflict exists, the court itself need not initiate an inquiry into the propriety of multiple representation. Under the circumstances of this case, the Sixth Amendment imposed upon the trial court no affirmative duty to inquire. Pp. 345-348. (b) Unless the trial court fails to afford a defendant who objects to multiple representation an opportunity to show that potential conflicts impermissibly imperil his right to a fair trial, a reviewing court cannot presume that the possibility for conflict resulted in ineffective assistance of counsel. In such a case, a defendant must demonstrate that an actual conflict of interest adversely affected the adequacy of his representation. Pp. 348-350. (c) The possibility of a conflict of interest is insufficient to impugn a criminal conviction. In order to establish a violation of the Sixth Amendment, a defendant must show that an actual conflict of interest adversely affected his lawyer's performance. P. 350. 593 F.2d 512, vacated and remanded. Steven H. Goldblatt, Philadelphia, Pa., for petitioners. Marilyn J. Gelb, Philadelphia, Pa., for respondent. Mr. Justice POWELL delivered the opinion of the Court. 1 The question presented is whether a state prisoner may obtain a federal writ of habeas corpus by showing that his retained defense counsel represented potentially conflicting interests. 2 * Respondent John Sullivan was indicted with Gregory Carchidi and Anthony DiPasquale for the first-degree murders of John Gorey and Rita Janda. The victims, a labor official and his companion, were shot to death in Gorey's second-story office at the Philadelphia headquarters of Teamsters' Local 107. Francis McGrath, a janitor, saw the three defendants in the building just before the shooting. They appeared to be awaiting someone, and they encouraged McGrath to do his work on another day. McGrath ignored their suggestions. Shortly afterward, Gorey arrived and went to his office. McGrath then heard what sounded like firecrackers exploding in rapid succession. Carchidi, who was in the room where McGrath was working, abruptly directed McGrath to leave the building and to say nothing. McGrath hastily complied. When he returned to the building about 15 minutes later, the defendants were gone. The victims' bodies were discovered the next morning. 3 Two privately retained lawyers, G. Fred DiBona and A. Charles Peruto, represented all three defendants throughout the state proceedings that followed the indictment. Sullivan had different counsel at the medical examiner's inquest, but he thereafter accepted representation from the two lawyers retained by his codefendants because he could not afford to pay his own lawyer.1 At no time did Sullivan or his lawyers object to the multiple representation. Sullivan was the first defendant to come to trial. The evidence against him was entirely circumstantial, consisting primarily of McGrath's testimony. At the close of the Commonwealth's case, the defense rested without presenting any evidence. The jury found Sullivan guilty and fixed his penalty at life imprisonment. Sullivan's post-trial motions failed, and the Pennsylvania Supreme Court affirmed his conviction by an equally divided vote. Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1971).2 Sullivan's codefendants, Carchidi and DiPasquale, were acquitted at separate trials. 4 Sullivan then petitioned for collateral relief under the Pennsylvania Post Conviction Hearing Act, Pa.Stat.Ann., Tit. 19, § 1180-1 et seq. (Purdon Supp.1979-1980). He alleged, among other claims, that he had been denied effective assistance of counsel because his defense lawyers represented conflicting interests. In five days of hearings, the Court of Common Pleas heard evidence from Sullivan, Carchidi, Sullivan's lawyers, and the judge who presided at Sullivan's trial. 5 DiBona and Peruto had different recollections of their roles at the trials of the three defendants. DiBona testified that he and Peruto had been "associate counsel" at each trial. App. 32a. Peruto recalled that he had been chief counsel for Carchidi and DePasquale, but that he merely had assisted DiBona in Sullivan's trial. DiBona and Peruto also gave conflicting accounts of the decision to rest Sullivan's defense. DiBona said he had encouraged Sullivan to testify even though the Commonwealth had presented a very weak case. Peruto remembered that he had not "want[ed] the defense to go on because I thought we would only be exposing [defense] witnesses for the other two trials that were coming up." Id., at 57a. Sullivan testified that he had deferred to his lawyers' decision not to present evidence for the defense. But other testimony suggested that Sullivan preferred not to take the stand because cross-examination might have disclosed an extramarital affair. Finally, Carchidi claimed he would have appeared at Sullivan's trial to rebut McGrath's testimony about Carchidi's statement at the time of the murders. 6 The Court of Common Pleas held that Sullivan could take a second direct appeal because counsel had not assisted him adequately in his first appeal. App. to Pet. for Cert. 5F. The court did not pass directly on the claim that defense counsel had a conflict of interest, but it found that counsel fully advised Sullivan about his decision not to testify. Id., at 7F. All other claims for collateral relief were rejected or reserved for consideration in the new appeal. 7 The Pennsylvania Supreme Court affirmed both Sullivan's original conviction and the denial of collateral relief. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). The court saw no basis for Sullivan's claim that he had been denied effective assistance of counsel at trial. It found that Peruto merely assisted DiBona in the Sullivan trial and that DiBona merely assisted Peruto in the trials of the other two defendants. Thus, the court concluded, there was "no dual representation in the true sense of the term." Id., at 161, 371 A.2d, at 483. The court also found that resting the defense was a reasonable tactic which had not denied Sullivan the effective assistance of counsel. Id., at 162, 371 A.2d, at 483-484. 8 Having exhausted his state remedies, Sullivan sought habeas corpus relief in the United States District Court for the Eastern District of Pennsylvania. The petition was referred to a Magistrate, who found that Sullivan's defense counsel had represented conflicting interests. The District Court, however, accepted the Pennsylvania Supreme Court's conclusion that there had been no multiple representation. The court also found that, assuming there had been multiple representation, the evidence adduced in the state post conviction proceeding revealed no conflict of interest. App. to Pet. for Cert. 5C-8C. 9 The Court of Appeals for the Third Circuit reversed. United States ex rel. Sullivan v. Cuyler, 593 F.2d 512 (1979). It first held that the participation by DiBona and Peruto in the trials of Sullivan and his codefendants established, as a matter of law, that both lawyers had represented all three defendants. The court recognized that multiple representation " 'is not tantamount to the denial of effective assistance of counsel . . . .' " But it held that a criminal defendant is entitled to reversal of his conviction whenever he makes " 'some showing of a possible conflict of interest or prejudice, however remote . . . .' " Id., at 519, quoting Walker v. United States, 422 F.2d 374, 375 (CA3) (per curiam ), cert. denied, 399 u.s. 915, 90 S.Ct. 2219, 26 L.Ed.2d 573 (1970). See also United States ex rel. Hart v. Davenport, 478 F.2d 203, 210 (CA3 1973). The court acknowledged that resting at the close of the prosecutor's case "would have been a legitimate tactical decision if made by independent counsel."3 Nevertheless, the court thought that action alone raised a possibility of conflict sufficient to prove a violation of Sullivan's Sixth Amendment rights. The court found support for its conclusion in Peruto's admission that concern for Sullivan's codefendants had affected his judgment that Sullivan should not present a defense. To give weight to DiBona's contrary testimony, the court held, "would be to . . . require a showing of actual prejudice." 593 F.2d, at 522.4 10 We granted certiorari, 444 U.S. 823, 100 S.Ct. 44, 62 L.Ed.2d 30 (1979), to consider recurring issues left unresolved by Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). We now vacate and remand. II 11 At the outset, we must consider whether the Court of Appeals exceeded the proper scope of review when it rejected the Pennsylvania Supreme Court's conclusion that DiBona and Peruto had not undertaken multiple representation. Petitioners claim that this determination by the Pennsylvania Supreme Court was a factfinding entitled to a presumption of correctness under 28 U.S.C. § 2254(d). 12 Section 2254(d) provides that "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . [and] evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct" unless the applicant for a federal writ of habeas corpus can establish one of the enumerated causes for exception. The Pennsylvania Supreme Court's holding does not fall within this statute because it is a conclusion of law rather than a finding of fact.5 13 In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Court examined the distinction between law and fact as it applies on collateral review of a state conviction. The Townsend opinion, the precursor of § 2254(d), noted that the phrase "issues of fact" refers "to what are termed basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators . . . .' " 372 U.S., at 309, n. 6, 83 S.Ct., at 755, n. 6, quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). Findings about the roles DiBona and Peruto played in the defenses of Sullivan and his codefendants are facts in this sense. But the holding that the lawyers who played those roles did not engage in multiple representation is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. Cf. Brewer v. Williams, 430 U.S. 387, 403-404, 97 S.Ct. 1232, 1241-1242, 51 L.Ed.2d 424 (1977); Neil v. Biggers, 409 U.S. 188, 193, n. 3, 93 S.Ct. 375, 379, n. 3, 34 L.Ed.2d 401 (1972). That holding is open to review on collateral attack in a federal court. 14 The Court of Appeals carefully recited the facts from which it concluded that DiBona and Peruto represented both Sullivan and his codefendants. The court noted that both lawyers prepared the defense in consultation with all three defendants, that both advised Sullivan on whether he should rest his defense, and that both played important roles at all three trials. 593 F.2d, at 518-519. In fact, the transcript of Sullivan's trial shows that Peruto rather than DiBona rested the defense. App. 265a. We agree with the Court of Appeals that these facts establish the existence of multiple representation. III 15 We turn next to the claim that the alleged failings of Sullivan's retained counsel cannot provide the basis for a writ of habeas corpus because the conduct of retained counsel does not involve state action.6 A state prisoner can win a federal writ of habeas corpus only upon a showing that the State participated in the denial of a fundamental right protected by the Fourteenth Amendment. The right to counsel guaranteed by the Sixth Amendment is a fundamental right. Argersinger v. Hamlin, 407 U.S. 25, 29-33, 92 S.Ct. 2006, 2008-2010, 32 L.Ed.2d 530 (1972). In this case, Sullivan retained his own lawyers, but he now claims that a conflict of interest hampered their advocacy. He does not allege that state officials knew or should have known that his lawyers had a conflict of interest. Thus, we must decide whether the failure of retained counsel to provide adequate representation can render a trial so fundamentally unfair as to violate the Fourteenth Amendment. 16 This Court's decisions establish that a state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. See Lisenba v. California, 314 U.S. 219, 236-237, 62 S.Ct. 280, 289-290, 86 L.Ed. 166 (1941); Moore v. Dempsey, 261 U.S. 86, 90-91, 43 S.Ct. 265, 266, 67 L.Ed. 543 (1923). The Court recognized as much in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), when it held that a defendant who must face felony charges in state court without the assistance of counsel guaranteed by the Sixth Amendment has been denied due process of law. Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself. Id., at 344, 83 S.Ct., at 796; see Johnson v. Zerbst, 304 U.S. 458, 467-468, 58 S.Ct., 1019, 1024, 82 L.Ed. 1461 (1938). When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty. See Argersinger v. Hamlin, supra, at 29-33, 92 S.Ct., at 2008-2010.7 17 Our decisions make clear that inadequate assistance does not satisfy the Sixth Amendment right to counsel made applicable to the States through the Fourteenth Amendment. A guilty plea is open to attack on the ground that counsel did not provide the defendant with "reasonably competent advice." McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 1448-1449, 25 L.Ed.2d 763 (1970); see Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). Furthermore, court procedures that restrict a lawyer's tactical decision to put the defendant on the stand unconstitutionally abridge the right to counsel. Brooks v. Tennessee, 406 U.S. 605, 612-613, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358 (1972) (requiring defendant to be first defense witness); Ferguson v. Georgia, 365 U.S. 570, 593-596, 81 S.Ct. 756, 768-770, 5 L.Ed.2d 783 (1961) (prohibiting direct examination of defendant). See also Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). Thus, the Sixth Amendment does more than require the States to appoint counsel for indigent defendants. The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance. 18 A proper respect for the Sixth Amendment disarms petitioner's contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused. But experience teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection.8 Since the State's conduct of a criminal trial itself implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.9 IV 19 We come at last to Sullivan's claim that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment because his lawyers had a conflict of interest. The claim raises two issues expressly reserved in Holloway v. Arkansas, 435 U.S., at 483-484, 98 S.Ct., at 1178. The first is whether a state trial judge must inquire into the propriety of multiple representation even though no party lodges an objection. The second is whether the mere possibility of a conflict of interest warrants the conclusion that the defendant was deprived of his right to counsel. A. 20 In Holloway, a single public defender represented three defendants at the same trial. The trial court refused to consider the appointment of separate counsel despite the defense lawyer's timely and repeated assertions that the interests of his clients conflicted. This Court recognized that a lawyer forced to represent codefendants whose interests conflict cannot provide the adequate legal assistance required by the Sixth Amendment. Id., at 481-482, 98 S.Ct., at 1177. Given the trial court's failure to respond to timely objections, however, the Court did not consider whether the alleged conflict actually existed. It simply held that the trial court's error unconstitutionally endangered the right to counsel. Id., at 483-487, 98 S.Ct., at 1178-1180. 21 Holloway requires state trial courts to investigate timely objections to multiple representation. But nothing in our precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case.10 Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.11 Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.12 Indeed, as the Court noted in Holloway, supra, at 485-486, 98 S.Ct., at 1179, trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel. "An 'attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.' " 435 U.S., at 485, 98 S.Ct., at 1179, quoting State v. Davis, 110 Ariz. 29, 31, 514 P.2d 1025, 1027 (1973). Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.13 22 Nothing in the circumstances of this case indicates that the trial court had a duty to inquire whether there was a conflict of interest. The provision of separate trials for Sullivan and his codefendants significantly reduced the potential for a divergence in their interests. No participant in Sullivan's trial ever objected to the multiple representation. DiBona's opening argument for Sullivan outlined a defense compatible with the view that none of the defendants was connected with the murders. See Brief for Respondent 7. The opening argument also suggested that counsel was not afraid to call witnesses whose testimony might be needed at the trials of Sullivan's codefendants. Seeid., at 8-9. Finally, as the Court of Appeals noted, counsel's critical decision to rest Sullivan's defense was on its face a reasonable tactical response to the weakness of the circumstantial evidence presented by the prosecutor. 593 F.2d, at 521, and n. 10. On these facts, we conclude that the Sixth Amendment imposed upon the trial court no affirmative duty to inquire into the propriety of multiple representation. B 23 Holloway reaffirmed that multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest. See 435 U.S., at 482, 98 S.Ct., at 1177. Since a possible conflict inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial. But unless the trial court fails to afford such an opportunity, a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel. Such a presumption would preclude multiple representation even in cases where " '[A] COMMON DEFENSE . . . GIVES STRENGTH AGAINST A COMMON ATTAck.' " id., at 482-483, 98 S.Ct., at 1178, quoting Glasser v. United States, 315 U.S. 60, 92, 62 S.Ct. 457, 475, 86 L.Ed. 680 (1942) (Frankfurter, J., dissenting). 24 In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.14 In Glasser v. United States, for example, the record showed that defense counsel failed to cross-examine a prosecution witness whose testimony linked Glasser with the crime and failed to resist the presentation of arguably inadmissible evidence. Id., at 72-75, 62 S.Ct. at 465-467. The Court found that both omissions resulted from counsel's desire to diminish the jury's perception of a codefendant's guilt. Indeed, the evidence of counsel's "struggle to serve two masters [could not] seriously be doubted." Id., at 75, 62 S.Ct., at 467. Since this actual conflict of interest impaired Glasser's defense, the Court reversed his conviction. 25 Dukes v. Warden, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972), presented a contrasting situation. Dukes pleaded guilty on the advice of two lawyers, one of whom also represented Dukes' codefendants on an unrelated charge. Dukes later learned that this lawyer had sought leniency for the codefendants by arguing that their cooperation with the police induced Dukes to plead guilty. Dukes argued in this Court that his lawyer's conflict of interest had infected his plea. We found " 'nothing in the record . . . which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent.' " Id., at 256, 92 S.Ct., at 1554, quoting Dukes v. Warden, 161 Conn. 337, 344, 288 A.2d 58, 62 (1971). Since Dukes did not identify an actual lapse in representation, we affirmed the denial of the habeas corpus relief. 26 Glasser established that unconstitutional multiple representation is never harmless error. Once the Court concluded that Glasser's lawyer had an actual conflict of interest, it refused "to indulge in nice calculations as to the amount of prejudice" attributable to the conflict. The conflict itself demonstrated a denial of the "right to have the effective assistance of counsel." 315 U.S., at 76, 62 S.Ct., at 467. Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. See Holloway, supra, 435 U.S., at 487-491, 98 S.Ct., at 1180-1182. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. See Glasser, supra, 315 U.S., at 72-75, 62 S.Ct., at 465-467.15 C 27 The Court of Appeals granted Sullivan relief because he had shown that the multiple representation in this case involved a possible conflict of interest. We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance. Sullivan believes he should prevail even under this standard. He emphasizes Peruto's admission that the decision to rest Sullivan's defense reflected a reluctance to expose witnesses who later might have testified for the other defendants. The petitioner, on the other hand, points to DiBona's contrary testimony and to evidence that Sullivan himself wished to avoid taking the stand. Since the Court of Appeals did not weigh these conflicting contentions under the proper legal standard, its judgment is vacated and the case is remanded for further proceedings consistent with this opinion. 28 So ordered. 29 Mr. Justice BRENNAN, concurring in Part III of the opinion of the Court and in the result. 30 I agree with the Court, in Part III, ante, at 342-345, that the alleged failure of retained counsel to render effective assistance involves state action and thus provides the basis for a writ of habeas corpus. I cannot, however, join Part IV of the opinion. 31 Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), settled that the Sixth Amendment right to effective assistance of counsel encompasses the right to representation by an attorney who does not owe conflicting duties to other defendants. While Holloway also established that defendants usually have the right to share a lawyer if they so choose, that choice must always be knowing and intelligent. The trial judge, therefore, must play a positive role in ensuring that the choice was made intelligently. The court cannot delay until a defendant or an attorney raises a problem, for the Constitution also protects defendants whose attorneys fail to consider, or choose to ignore potential conflict problems. "Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . . . The trial court should protect the right of an accused to have the assistance of counsel." Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 465, 86 L.Ed.2d 680 (1942). "While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record." Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). This principle is honored only if the accused has the active protection of the trial court in assuring that no potential for divergence in interests threatens the adequacy of counsel's representation. 32 It is no imposition on a trial court to require it to find out whether attorneys are representing "two or more defendants [who] have been jointly charged . . . or have been joined for trial . . .," to use the language of proposed Federal Rule of Criminal Procedure 44(c).1 It is probable as a practical matter that virtually all instances of joint representation will appear from the face of the charging papers and the appearances filed by attorneys. The American Bar Association's standards under the ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 3.4(b) (App.Draft 1972), are framed on the premise that judges will be readily able to ascertain instances of joint representation. 33 "[A] possible conflict inheres in almost every instance of multiple representation." Ante, at 348. Therefore, upon discovery of joint representation, the duty of the trial court is to ensure that the defendants have not unwittingly given up their constitutional right to effective counsel. This is necessary since it is usually the case that defendants will not know what their rights are or how to raise them. This is surely true of the defendant who may not be receiving the effective assistance of counsel as a result of conflicting duties owed to other defendants. Therefore, the trial court cannot safely assume that silence indicates a knowledgeable choice to proceed jointly. The court must at least affirmatively advise the defendants that joint representation creates potential hazards which the defendants should consider before proceeding with the representation.2 34 Had the trial record in the present case shown that respondent made a knowing and intelligent choice of joint representation, I could accept the Court's standard for a post conviction determination as to whether respondent in fact was denied effective assistance. Where it is clear that a defendant has voluntarily chosen to proceed with joint representation, it is fair, if he later alleges ineffective assistance growing out of a conflict, to require that he demonstrate "that a conflict of interest actually affected the adequacy of his representation." Ante, at 349. Here, however, where there is no evidence that the court advised respondent about the potential for conflict or that respondent made a knowing and intelligent choice to forgo his right to separate counsel, I believe that respondent, who has shown a significant possibility of conflict,3 is entitled to a presumption that his representation in fact suffered. Therefore, I would remand the case to allow the petitioners an opportunity to rebut this presumption by demonstrating that respondent's representation was not actually affected by the possibility of conflict. 35 Mr. Justice MARSHALL, concurring in part and dissenting in part. 36 I agree that the Court of Appeals properly concluded that respondent's lawyers had undertaken multiple representation, and that a conviction obtained when a defendant's retained counsel provided ineffective assistance involves state action that may provide the basis for a writ of habeas corpus. Accordingly, I join Parts I, II, and III of the Court's opinion. 37 I believe, however, that the potential for conflict of interest in representing multiple defendants is "so grave," see ABA Project on Standards for Criminal Justice, Defense Function, Standard 4-3.5(b) (App.Draft, 2d ed. 1979), that whenever two or more defendants are represented by the same attorney the trial judge must make a preliminary determination that the joint representation is the product of the defendants' informed choice. I therefore agree with Mr. Justice BRENNAN that the trial court has a duty to inquire whether there is multiple representation, to warn defendants of the possible risks of such representation, and to ascertain that the representation is the result of the defendants' informed choice.1 38 I dissent from the Court's formulation of the proper standard for determining whether multiple representation has violated the defendant's right to the effective assistance of counsel. The Court holds that in the absence of an objection at trial, the defendant must show "that an actual conflict of interest adversely affected his lawyer's performance." Ante, at 348. If the Court's holding would require a defendant to demonstrate that his attorney's trial performance differed from what it would have been if the defendant had been the attorney's only client, I believe it is inconsistent with our previous cases. Such a test is not only unduly harsh, but incurably speculative as well. The appropriate question under the Sixth Amendment is whether an actual, relevant conflict of interests existed during the proceedings. If it did, the conviction must be reversed. Since such a conflict was present in this case, I would affirm the judgment of the Court of Appeals.2 39 Our cases make clear that every defendant has a constitutional right to "the assistance of an attorney unhindered by a conflict of interests." Holloway v. Arkansas, 435 U.S. 475, 483, n. 5, 98 S.Ct. 1173, 1178, n. 5, 55 L.Ed.2d 426 (1978). "[T]he 'Assistance of Counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests." Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942). If "[t]he possibility of the inconsistent interests of [the clients] was brought home to the court" by means of an objection at trial, id., at 71, 62 S.Ct., at 465, the court may not require joint representation. But if no objection was made at trial, the appropriate inquiry is whether a conflict actually existed during the course of the representation. 40 Because it is the simultaneous representation of conflicting interests against which the Sixth Amendment protects a defendant, he need go no further than to show the existence of an actual conflict.3 An actual conflict of interests negates the unimpaired loyalty a defendant is constitutionally entitled to expect and receive from his attorney. 41 Moreover, a showing that an actual conflict adversely affected counsel's performance is not only unnecessary,4 it is often an impossible task. As the Court emphasized in Holloway : 42 "[I]n a case of joint representation of conflicting interests the evil—it bears repeating—is in what the advocate finds himself compelled to refrain from doing . . . . It may be possible in some cases to identify from the record the prejudice resulting from an attorney's failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney's representation of a client. And to assess the impact of a conflict of interests on the attorney's options, tactics, and decisions in plea negotiations would be virtually impossible." 435 U.S., at 490-491, 98 S.Ct., at 1182 (emphasis in original). 43 Accordingly, in Holloway we emphatically rejected the suggestion that a defendant must show prejudice in order to be entitled to relief. For the same reasons, it would usually be futile to attempt to determine how counsel's conduct would have been different if he had not been under conflicting duties. 44 In the present case Peruto's testimony, if credited by the court, would be sufficient to make out a case of ineffective assistance by reason of a conflict of interests under even a restrictive reading of the Court's standard. In the usual case, however, we might expect the attorney to be unwilling to give such supportive testimony, thereby impugning his professional efforts. Moreover, in many cases the effects of the conflict on the attorney's performance will not be discernible from the record. It is plain to me, therefore, that in some instances the defendant will be able to show there was an actual, relevant conflict, but be unable to show that it changed his attorney's conduct. 45 It is possible that the standard articulated by the Court may not require a defendant to demonstrate that his attorney chose an action adverse to his interests because of a conflicting duty to another client. Arguably, if the attorney had to make decisions concerning his representation of the defendant under the constraint of inconsistent duties imposed by an actual conflict of interests, the adequacy of the representation was adversely affected. See ante, at 350 (defendant must show "that his counsel actively represented conflicting interests"). If that is the case, the Court's view and mine may not be so far apart after all. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 DiBona and Peruto were paid in part with funds raised by friends of the three defendants. The record does not disclose the source of the balance of their fee, but no part of the money came from either Sullivan or his family. See United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 518, and n. 7 (CA3 1979). 2 The Pennsylvania Supreme Court denied two petitions for reargument. See Commonwealth v. Sullivan, 472 Pa. 129, 180, 371 A.2d 468, 492 (1977) (Pomeroy, J., concurring and dissenting). Meanwhile, Sullivan's pro se petitions for federal habeas corpus relief were dismissed for failure to exhaust state remedies. See United States ex rel. Sullivan v. Cuyler, supra, at 515, and n. 4. 3 Indeed, the Court of Appeals noted that the Pennsylvania Supreme Court at first divided evenly on whether the Commonwealth's evidence was sufficient to support a conviction. 593 F.2d, at 521, n. 10. 4 Judge Garth, with whom Judges Adams and Rosenn joined, filed an opinion dissenting from the denial of a petition for rehearing en banc. Id., at 524. 5 Petitioners must rely solely on the State Supreme Court's holding because the state court that heard evidence on Sullivan's petition for collateral relief did not decide whether defense counsel had represented conflicting interests. See supra, at 339. The State Supreme Court resolved that issue on the second direct appeal without the benefit of a trial court finding. Since we conclude that a determination of whether counsel undertook multiple representation is not a finding of fact, we need not decide whether the statements of an appellate court can be "determination[s] after a hearing on the merits of a factual issue" within the meaning of 28 U.S.C. § 2254(d). Compare Velleca v. Superintendent, 523 F.2d 1040, 1041-1042 (CA1 1975) (per curiam ), with Hill v. Nelson, 466 F.2d 1346, 1348 (CA9 1972) (per curiam ). 6 Although the petitioners did not present this state action argument to the Court of Appeals, both parties have briefed and argued it in this Court. Since resolution of this question of law is a "predicate to an intelligent resolution" of the question on which we granted certiorari, see Vance v. Terrazas, 444 U.S. 252, 258-259, n. 5, 100 S.Ct. 540, 544, n. 5, 62 L.Ed.2d 461 (1980), we must address it. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 320, n. 6, 91 S.Ct. 1434, 1438 n. 6, 28 L.Ed.2d 788 (1971). See generally R. Stern & E. Gressman, Supreme Court Practice § 6.27, pp. 458-461 (5th ed. 1978). 7 See generally Fitzgerald v. Estelle, 505 F.2d 1334, 1345-1346 (CA5 1974) (en banc) (Godbold, J., concurring in part and dissenting in part), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975); West v. Louisiana, 478 F.2d 1026, 1032-1034 (CA5 1973), vacated and remanded, 510 F.2d 363 (1975) (en banc). 8 See Polur, Retained Counsel, Assigned Counsel: Why the Dichotomy?, 55 A.B.A.J. 254, 255 (1969). 9 As the Court of Appeals for the Third Circuit said in United States ex rel. Hart v. Davenport, 478 F.2d 203, 211 (1973): "A rule which would apply one fourteenth amendment test to assigned counsel and another to retained counsel would produce the anomaly that the non-indigent, who must retain an attorney if he can afford one, would be entitled to less protection . . . . The effect upon the defendant—confinement as a result of an unfair state trial—is the same whether the inadequate attorney was assigned or retained." 10 In certain cases, proposed Federal Rule of Criminal Procedure 44(c) provides that the federal district courts "shall promptly inquire with respect to . . . joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation." See also ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 3.4(b) (App. Draft 1972). Several Courts of Appeals already invoke their supervisory power to require similar inquiries. See United States v. Waldman, 579 F.2d 649, 651-652 (CA1 1978); United States v. DeBerry, 487 F.2d 448, 452-454 (CA2 1973); United States v. Cox, 580 F.2d 317, 321 (CA8 1978), cert. denied, 439 U.S. 1075, 99 S.Ct. 851, 59 L.Ed.2d 43 (1979); United States v. Lawriw, 568 F.2d 98 (CA8 1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978); cf. Ford v. United States, 126 U.S.App.D.C. 346, 348-349, 379 F.2d 123, 125-126 (1967). As our promulgation of Rule 44(c) suggests, we view such an exercise of the supervisory power as a desirable practice. See generally Schwarzer, Dealing with Incompetent Counsel—The Trial Judge's Role, 93 Harv.L.Rev. 633, 653-654 (1980). Although some Circuits have said explicitly that the Sixth Amendment does not require an inquiry into the possibility of conflicts, United States v. Steele, 576 F.2d 111 (CA6) (per curiam ), cert. denied, 439 u.s. 928, 99 S.Ct. 313, 58 L.Ed.2d 321 (1978); United States v. Mavrick, 601 F.2d 921, 929 (CA7 1979), a recent opinion in the Second Circuit held otherwise, Colon v. Fogg, 603 F.2d 403, 407 (1979). 11 ABA Code of Professional Responsibility, DR 5-105, EC 5-15 (1976); ABA Project on Standards for Criminal Justice, Defense Function § 3.5(b) (App. Draft 1971). Seventy percent of the public defender offices responding to a recent survey reported a strong policy against undertaking multiple representation in criminal cases. Forty-nine percent of the offices responding never undertake such representation. Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va.L.Rev. 939, 950, and n. 40 (1978). The private bar may be less alert to the importance of avoiding multiple representation in criminal cases. See Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119, 152-157 (1978); Lowenthal, supra, at 961-963. 12 See United States v. Kidding, 560 F.2d 1303, 1310 (CA7), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977); United States v. Mandell, 525 F.2d 671, 675-677 (CA7 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 774, 46 L.Ed.2d 637 (1976); Geer, supra n. 11, at 145-146. 13 Cf. United States v. Medel, 592 F.2d 1305, 1312-1313 (CA5 1979); Foxworth v. Wainwright, 516 F.2d 1072, 1076-1077 (CA5 1975). 14 A substantial majority of the Courts of Appeals require defendants who contend that multiple representation violated their Sixth Amendment rights to identify an actual conflict of interest. See United States v. Lovano, 420 F.2d 769, 773 (CA2), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970); United States v. Atkinson, 565 F.2d 1283, 1284-1285 (CA4 1977), cert. denied 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978); Foxworth v. Wainwright, supra, at 1077; Thacker v. Bordenkircher, 590 F.2d 640, 642 (CA6), cert. denied, 442 U.S. 912, 99 S.Ct. 912, 61 L.Ed.2d 278 (1979); United States v. Mandell, supra, at 677-678; United States v. Cox, 580 F.2d, at 321-323; United States v. Kutas, 542 F.2d 527, 529 (CA9 1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977); cf. United States v. Carrigan, 543 F.2d 1053, 1056 (CA2 1976) (burden of proof shifts when trial court fails to inquire into possibility of conflict). 15 See Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 J.Crim.L. & C. 226, 231-232 (1977). 1 Proposed Rule 44(c) provides: "Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel." Congress has postponed the effectiveness of Rule 44(c) until December 1, 1980, or until, and to the extent approved by, an Act of Congress, whichever is earlier. Pub.L. 96-42, 93 Stat. 326. 2 Though proposed Rule 44(c), n. 1, supra, provides a good model, the court's inquiry need not take any particular form. See also ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 3.4(b) (App.Draft 1972), which provides: "Whenever two or more defendants who have been jointly charged, or whose cases have been consolidated, are represented by the same attorney, the trial judge should inquire into potential conflicts which may jeopardize the right of each defendant to the fidelity of his counsel." Several Courts of Appeals have imposed some kind of duty of inquiry. See ante, at 346, n. 10. One, the First Circuit, has suggested that at least the duty, as opposed to any specific form of inquiry, may be constitutionally mandated. United States v. Waldman, 579 F.2d 649, 653 (1978). 3 The Court of Appeals held that respondent successfully carried the burden of demonstrating "a possibility of prejudice or conflict of interest and that independent counsel might well have chosen a different trial strategy." United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 521 (1979). The court based its holding, in part, on the testimony of one of respondent's two trial attorneys. He testified that they chose not to present a defense in respondent's case partly because they did not want to expose their defense before the upcoming trials of respondent's codefendants. Also, they did not want to risk having any evidence come out which, while exculpating respondent, might inculpate one of the codefendants. Ibid. The court credited this testimony. Id., at 522. The facts of this case demonstrate that, contrary to the view of the Court, ante, at 347, the provision of separate trials does not always reduce the potential for conflict. Here, in fact, "the potential for a divergence in [the codefendants'] interests," ibid., arose, in part, precisely because there were separate trials. 1 The determination that the defendant has made an informed choice of counsel would not, of course, establish a waiver that would prevent him from subsequently raising any claim of ineffective assistance of counsel based on a conflict of interest. The dangers of infringing the defendants' privilege against self-incrimination and their right to maintain the confidentiality of the defense strategy foreclose the type of detailed inquiry necessary to establish a knowing and intelligent waiver. Furthermore, the inquiry would take place at such an early stage of the proceedings that not all possible conflicts might be anticipated. See Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119, 145 (1978). 2 The Court of Appeals cast its decision in terms of a "potential for conflict of interest," United States ex rel. Sullivan v. Cuyler, 593 F.2d 512, 522 (1979), and made no explicit statement that an actual conflict of interest existed. The court's analysis was premised, however, on its conclusion that "[w]e have no basis on which to reject Peruto's sworn admission that he injected improper considerations into the attorney-client relationship." Ibid. This statement clearly demonstrates that the court found an actual, relevant conflict of interests. 3 "Conflict of interests" is a term that is often used and seldom defined. The American Bar Association's usage, which has remained essentially unchanged since the promulgation of the Canons of Professional Ethics in 1908, is a fair statement of what is ordinarily meant by the term, and it is that meaning that I adopt here. The ABA Standards state that a lawyer should not undertake multiple representation "if the duty to one of the defendants may conflict with the duty to another." ABA Project on Standards for Criminal Justice, Defense Function, Standard 4-3.5(b) (App.Draft, 2d ed. 1979). The Code of Professional Responsibility forbids multiple representation "if it would be likely to involve [the lawyer] in representing differing interests," unless the lawyer can adequately represent each client and obtains the informed consent of each. ABA Code of Professional Responsibility, Disciplinary Rule 5-105(A)-(B) (1976). The Code of Professional Responsibility superseded the Canons of Professional Ethics (1937), which spoke of "conflicting interests" rather than "differing interests." The term was defined in Canon 6: "[A] lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose." The ABA materials do not, of course, define the constitutional standard. However, they are consistent with Glasser' s emphasis on the interests of the defendants, and the corresponding duties owed by the attorney, rather than on the empirical question of the effect of the conflict on the attorney's performance. See Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 J.Crim.L. & C. 226 (1977). There is a possibility of conflict, then, if the interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties. There is an actual, relevant conflict of interests if, during the course of the representation, the defendants' interests do diverge with respect to a material factual or legal issue or to a course of action. 4 In Glasser, the defendant's objection at trial to joint representation was that, as his lawyer put it, "Mr. Glasser feels that if I would represent Mr. Kretske the jury would get an idea that they are together. . . ." 315 U.S., at 68, 62 S.Ct., at 464. Whether the attorney's performance was in fact affected by the joint representation is, of course, irrelevant to the merits of such a claim. While the Court did discuss the possibility that the lawyer's failure to cross-examine prosecution witnesses fully or to object to the admission of certain evidence was the result of the joint representation, the possibility that the jury would assume that "birds of a feather flock to the same lawyer," Greer, supra n. 1, at 136, was the only objection raised at trial and the Court plainly considered it sufficient to require the appointment of separate counsel for Kretske.

01

446 U.S. 420 100 S.Ct. 1759 64 L.Ed.2d 398 Robert Franklin GODFREY, Petitioner,v.State of GEORGIA. No. 78-6899. Argued Feb. 20, 1980. Decided May 19, 1980. Syllabus * Under a provision of the Georgia Code, a person convicted of murder may be sentenced to death if it is found beyond a reasonable doubt that the offense "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." (This statutory aggravating circumstance was held not to be unconstitutional on its face in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859.) Upon a jury trial in a Georgia state court, petitioner was convicted of two counts of murder and one count of aggravated assault. The evidence showed that after his wife, who was living with her mother, had rebuffed his efforts for a reconciliation, petitioner went to his mother-in-law's trailer; fired a shotgun through the window, killing his wife instantly; proceeded into the trailer striking and injuring his fleeing daughter with the barrel of the gun; and then shot and instantly killed his mother-in-law. Petitioner than called the sheriff's office and, when officers arrived, acknowledged his responsibility, directed an officer to the murder weapon, and later told an officer, "I've done a hideous crime." At the sentencing phase of the trial, the judge quoted to the jury the statutory provision in question, and the jury imposed death sentences on both murder convictions, specifying that the aggravating circumstance as to each conviction was that the offense "was outrageously or wantonly vile, horrible and inhuman." The Georgia Supreme Court affirmed the trial court's judgments in all respects rejecting petitioner's contention that the statutory provision was unconstitutionally vague and holding that the evidence supported the jury's finding of the statutory aggravating circumstance. Held : The judgment is reversed insofar as it leaves standing the death sentences, and the case is remanded. Pp. 427-433 (opinion of STEWART, J.); pp. 433-442 (opinion of MARSHALL, J.). 243 Ga. 302, 253 S.E.2d 710, reversed and remanded. 1 Mr. Justice STEWART, joined by Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice STEVENS, concluded that in affirming the death sentences in this case the Georgia Supreme Court adopted such a broad and vague construction of the statute in question as to violate the Eighth and Fourteenth Amendments. Pp. 427-433. 2 (a) If a State wishes to authorize capital punishment, it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty, and thus it must define the crimes for which death may be imposed in a way that obviates standardless sentencing discretion. Cf. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346; Gregg v. Georgia, supra. Pp. 427-428. 3 (b) In earlier decisions interpreting the statutory provision, the Georgia Supreme Court concluded that (i) the evidence that the offense was "outrageously or wantonly vile, horrible or inhuman" must demonstrate "torture, depravity of mind, or an aggravated battery to the victim," (ii) the phrase "depravity of mind" comprehended only the kind of mental state that led the murderer to torture or to commit an aggravated battery before killing his victim, and (iii) the word "torture" must be construed in pari materia with "aggravated battery" so as to require evidence of serious physical abuse of the victim before death. Pp. 429-432. 4 (c) However, the Georgia courts did not so limit the statute in the present case. Petitioner did not torture or commit an aggravated battery upon his victims, or cause either of them to suffer any physical injury preceding their deaths. Nor can the death sentences be upheld on the ground that the murders were "outrageously or wantonly vile, horrible or inhuman in that [they] involved . . . depravity of mind." Petitioner's crimes cannot be said to have reflected a consciousness materially more "depraved" than that of any person guilty of murder. Pp. 432-433. 5 Mr. Justice MARSHALL, joined by Mr. Justice BRENNAN, concurring in the judgment, expressed his continuing belief that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, and also agreed with the plurality that the Georgia Supreme Court's construction of the statutory provision at issue here was unconstitutionally vague under Gregg v. Georgia, supra. He further concluded that, even under the prevailing view that the death penalty may, in some circumstances, constitutionally be imposed, it is not enough for a reviewing court to apply a narrowing construction to otherwise ambiguous statutory language, it being necessary that the jury be instructed on the proper, narrow construction of the statute, and that developments since Gregg and its progeny strongly suggest that appellate courts are incapable of guaranteeing the kind of objectivity and evenhandedness that the Court contemplated in Gregg. Pp. 433-442. 6 J. Calloway Holmes, Jr., Cedartown, Ga., for petitioner. 7 John W. Dunsmore, Jr., Atlanta, Ga., for respondent. 8 Mr. Justice STEWART announced the judgment of the Court and delivered an opinion, in which Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice STEVENS joined. 9 Under Georgia law, a person convicted of murder1 may be sentenced to death if it is found beyond a reasonable doubt that the offense "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga.Code § 27-2534.1(b)(7) (1978). In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, the Court held that this statutory aggravating circumstance (§ (b)(7)) is not unconstitutional on its face. Responding to the argument that the language of the provision is "so broad that capital punishment could be imposed in any murder case," the joint opinion said: 10 "It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction." 428 U.S., at 201, 96 S.Ct., at 2938 (opinion of STEWART, POWELL, and STEVENS, JJ.). 11 Nearly four years have passed since the Gregg decision, and during that time many death sentences based in whole or in part on § (b)(7) have been affirmed by the Supreme Court of Georgia. The issue now before us is whether, in affirming the imposition of the sentences of death in the present case, the Georgia Supreme Court has adopted such a broad and vague construction of the § (b)(7) aggravating circumstance as to violate the Eighth and Fourteenth Amendments to the United States Constitution.2 12 * On a day in early September in 1977, the petitioner and his wife of 28 years had a heated argument in their home. During the course of this altercation, the petitioner, who had consumed several cans of beer, threatened his wife with a knife and damaged some of her clothing. At this point, the petitioner's wife declared that she was going to leave him, and departed to stay with relatives.3 That afternoon she went to a Justice of the Peace and secured a warrant charging the petitioner with aggravated assault. A few days later, while still living away from home, she filed suit for divorce. Summons was served on the petitioner, and a court hearing was set on a date some two weeks later. Before the date of the hearing, the petitioner on several occasions asked his wife to return to their home. Each time his efforts were rebuffed. At some point during this period, his wife moved in with her mother. The petitioner believed that his mother-in-law was actively instigating his wife's determination not to consider a possible reconciliation. 13 In the early evening of September 20, according to the petitioner, his wife telephoned him at home. Once again they argued. She asserted that reconciliation was impossible and allegedly demanded all the proceeds from the planned sale of their house. The conversation was terminated after she said that she would call back later. This she did in an hour or so. The ensuing conversation was, according to the petitioner's account, even more heated than the first. His wife reiterated her stand that reconciliation was out of the question, said that she still wanted all proceeds from the sale of their house, and mentioned that her mother was supporting her position. Stating that she saw no further use in talking or arguing, she hung up. 14 At this juncture, the petitioner got out his shotgun and walked with it down the hill from his home to the trailer where his mother-in-law lived. Peering through a window, he observed his wife, his mother-in-law, and his 11-year-old daughter playing a card game. He pointed the shotgun at his wife through the window and pulled the trigger. The charge from the gun struck his wife in the forehead and killed her instantly. He proceeded into the trailer, striking and injuring his fleeing daughter with the barrel of the gun. He then fired the gun at his mother-in-law, striking her in the head and killing her instantly. 15 The petitioner then called the local sheriff's office, identified himself, said where he was, explained that he had just killed his wife and mother-in-law, and asked that the sheriff come and pick him up. Upon arriving at the trailer, the law enforcement officers found the petitioner seated on a chair in open view near the driveway. He told one of the officers that "they're dead, I killed them" and directed the officer to the place where he had put the murder weapon. Later the petitioner told a police officer: "I've done a hideous crime, . . . but I have been thinking about it for eight years . . . I'd do it again." 16 The petitioner was subsequently indicted on two counts of murder and one count of aggravated assault. He pleaded not guilty and relied primarily on a defense of temporary insanity at his trial. The jury returned verdicts of guilty on all three counts. 17 The sentencing phase of the trial was held before the same jury. No further evidence was tendered, but counsel for each side made arguments to the jury. Three times during the course of his argument, the prosecutor stated that the case involved no allegation of "torture" or of an "aggravated battery." When counsel had completed their arguments, the trial judge instructed the jury orally and in writing on the standards that must guide them in imposing sentence. Both orally and in writing, the judge quoted to the jury the statutory language of the § (b)(7) aggravating circumstance in its entirety. 18 The jury imposed sentences of death on both of the murder convictions. As to each, the jury specified that the aggravating circumstance they had found beyond a reasonable doubt was "that the offense of murder was outrageously or wantonly vile, horrible and inhuman." 19 In accord with Georgia law in capital cases, the trial judge prepared a report in the form of answers to a questionnaire for use on appellate review. One question on the form asked whether or not the victim had been "physically harmed or tortured." The trial judge's response was "No, as to both victims, excluding the actual murdering of the two victims."4 20 The Georgia Supreme Court affirmed the judgments of the trial court in all respects. 243 Ga. 302, 253 S.E.2d 710 (1979). With regard to the imposition of the death sentence for each of the two murder convictions, the court rejected the petitioner's contention that § (b)(7) is unconstitutionally vague. The court noted that Georgia's death penalty legislation had been upheld in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, and cited its prior decisions upholding § (b)(7) in the face of similar vagueness challenges. 243 Ga., at 308-309, 253 S.E.2d, at 717. As to the petitioner's argument that the jury's phraseology was, as a matter of law, an inadequate statement of § (b)(7), the court responded by simply observing that the language "was not objectionable." 243 Ga., at 310, 253 S.E.2d, at 718. The court found no evidence that the sentence had been "imposed under the influence of passion, prejudice, or any other arbitrary factor," held that the sentence was neither excessive nor disproportionate to the penalty imposed in similar cases, and stated that the evidence supported the jury's finding of the § (b)(7) statutory aggravating circumstance. 243 Ga., at 309-311, 253 S.E.2d, at 717-718. Two justices dissented. II 21 In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. Gregg v. Georgia, supra, reaffirmed this holding: 22 "[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." 428 U.S., at 189, 96 S.Ct., at 2932 (opinion of STEWART, POWELL, and STEVENS, JJ.). 23 A capital sentencing scheme must, in short, provide a " 'meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.' " Id., at 188, 96 S.Ct., at 2932, quoting Furman v. Georgia, supra, at 313, 92 S.Ct., at 2763 (WHITE, J., concurring). 24 This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates "standardless [sentencing] discretion." Gregg v. Georgia, supra, at 196, n. 47, 96 S.Ct., at 2936, n. 47. See also Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929. It must channel the sentencer's discretion by "clear and objective standards"5 that provide "specific and detailed guidance,"6 and that "make rationally reviewable the process for imposing a sentence of death."7 As was made clear in Gregg, a death penalty "system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur." 428 U.S., at 195, n. 46, 96 S.Ct., at 2935. 25 In the case before us the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was "outrageously or wantonly vile, horrible and inhuman."8 There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as "outrageously or wantonly vile, horrible and inhuman." Such a view may, in fact, have been one to which the members of the jury in this case subscribed. If so, their preconceptions were not dispelled by the trial judge's sentencing instructions. These gave the jury no guidance concerning the meaning of any of § (b)(7)'s terms. In fact, the jury's interpretation of § (b)(7) can only be the subject of sheer speculation. 26 The standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury in this case was in no way cured by the affirmance of those sentences by the Georgia Supreme Court. Under state law that court may not affirm a judgment of death until it has independently assessed the evidence of record and determined that such evidence supports the trial judge's or jury's finding of an aggravating circumstance. Ga.Code § 27-2537(c)(2) (1978). 27 In past cases the State Supreme Court has apparently understood this obligation as carrying with it the responsibility to keep § (b)(7) within constitutional bounds. Recognizing that "there is a possibility of abuse of [the § (b)(7)] statutory aggravating circumstance," the court has emphasized that it will not permit the language of that subsection simply to become a "catchall" for cases which do not fit within any other statutory aggravating circumstance. Harris v. State, 237 Ga. 718, 732, 230 S.E.2d 1, 10 (1976). Thus, in exercising its function of death sentence review, the court has said that it will restrict its "approval of the death penalty under this statutory aggravating circumstance to those cases that lie at the core." Id., at 733, 230 S.E.2d, at 11. 28 When Gregg was decided by this Court in 1976, the Georgia Supreme Court had affirmed two death sentences based wholly on § (b)(7). See McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974). The homicide in McCorquodale was "a horrifying torture-murder."9 There, the victim had been beaten, burned, raped, and otherwise severely abused before her death by strangulation. The homicide in House was of a similar ilk. In that case, the convicted murderer had choked two 7-year-old boys to death after having forced each of them to submit to anal sodomy. 29 Following our decision in Gregg, the Georgia Supreme Court for the first time articulated some of the conclusions it had reached with respect to § (b)(7): 30 "This aggravating circumstance involves both the effect on the victim, viz., torture, or an aggravated battery; and the offender, viz., depravity of mind. As to both parties the test is that the acts (the offense) were outrageously or wantonly vile, horrible or inhuman. 31 * * * * * 32 "We believe that each of [the cases decided to date that has relied exclusively on § (b)(7)10] establishes beyond any reasonable doubt a depravity of mind and either involved torture or an aggravated battery to the victim as illustrating the crimes were outrageously or wantonly vile, horrible or inhuman. Each of the cases is at the core and not the periphery . . . ." Harris v. State, supra, at 732-733, 230 S.E.2d, at 10-11. 33 Subsequently, in Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977), the court elaborated on its understanding of § (b)(7). There, the contention was that a jury's finding of the aggravating circumstance could never be deemed unanimous without a polling of each member of the panel. The court said: 34 "We find no significant dissimilarity between outrageously vile, wantonly vile, horrible or inhuman. Considering torture and aggravated battery on the one hand as substantially similar treatment of the victim and depravity of mind on the other hand as relating to the defendant, we find no room for nonunanimous verdicts for the reason that there is no prohibition upon measuring cause on the one hand by effect on the other hand. That is to say, the depravity of mind contemplated by the statute is that which results in torture or aggravated battery to the victim. . . ." 239 Ga., at 299, 236 S.E.2d, at 643.11 35 The Harris and Blake opinions suggest that the Georgia Supreme Court had by 1977 reached three separate but consistent conclusions respecting the § (b)(7) aggravating circumstance. The first was that the evidence that the offense was "outrageously or wantonly vile, horrible or inhuman" had to demonstrate "torture, depravity of mind, or an aggravated battery to the victim."12 The second was that the phrase, "depravity of mind," comprehended only the kind of mental state that led the murderer to torture or to commit an aggravated battery before killing his victim. The third, derived from Blake alone, was that the word, "torture," must be construed in pari materia with "aggravated battery" so as to require evidence of serious physical abuse of the victim before death.13 Indeed, the circumstances proved in a number of the § (b)(7) death sentence cases affirmed by the Georgia Supreme Court have met all three of these criteria.14 36 The Georgia courts did not, however, so limit § (b)(7) in the present case. No claim was made, and nothing in the record before us suggests, that the petitioner committed an aggravated battery upon his wife or mother-in-law or, in fact, caused either of them to suffer any physical injury preceding their deaths. Moreover, in the trial court, the prosecutor repeatedly told the jury—and the trial judge wrote in his sentencing report—that the murders did not involve "torture." Nothing said on appeal by the Georgia Supreme Court indicates that it took a different view of the evidence. The circumstances of this case, therefore, do not satisfy the criteria laid out by the Georgia Supreme Court itself in the Harris and Blake cases. In holding that the evidence supported the jury's § (b)(7) finding, the State Supreme Court simply asserted that the verdict was "factually substantiated." 37 Thus, the validity of the petitioner's death sentences turns on whether, in light of the facts and circumstances of the murders that he was convicted of committing, the Georgia Supreme Court can be said to have applied a constitutional construction of the phrase "outrageously or wantonly vile, horrible or inhuman in that [they] involved . . . depravity of mind . . . ."15 We conclude that the answer must be no. The petitioner's crimes cannot be said to have reflected a consciousness materially more "depraved" than that of any person guilty of murder. His victims were killed instantaneously.16 They were members of his family who were causing him extreme emotional trauma. Shortly after the killings, he acknowledged his responsibility and the heinous nature of his crimes. These factors certainly did not remove the criminality from the petitioner's acts. But, as was said in Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393, it "is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." 38 That cannot be said here. There is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not. Accordingly, the judgment of the Georgia Supreme Court insofar as it leaves standing the petitioner's death sentences is reversed, and the case is remanded to that court for further proceedings. 39 It is so ordered. 40 Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring in the judgment. 41 I continue to believe that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. In addition I agree with the plurality that the Georgia Supreme Court's construction of the provision at issue in this case is unconstitutionally vague under Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). I write separately, first, to examine the Georgia Supreme Court's application of this provision, and second, to suggest why the enterprise on which the Court embarked in Gregg v. Georgia, supra, increasingly appears to be doomed to failure. 42 * Under Georgia law, the death penalty may be imposed only when the jury both finds at least one statutory aggravating circumstance and recommends that the sentence of death should be imposed. Ga.Code § 26-3102 (1978). Under Ga.Code § 27-2534.1(b)(7) (1978), it is a statutory aggravating circumstance to commit a murder that "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." In Gregg v. Georgia, supra, the Court rejected a facial challenge to the constitutionality of this aggravating circumstance. The joint opinion conceded that it is "arguable that any murder involves depravity of mind or an aggravated battery." 428 U.S., at 201, 96 S.Ct., at 2938 (opinion of STEWART, POWELL, and STEVENS, JJ.). Nonetheless, that opinion refused to invalidate the provision on its face, reasoning that the statutory "language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction." Ibid. In my view, life and death should not be determined by such niceties of language. 43 The Court's conclusion in Gregg was not unconditional; it was expressly based on the assumption that the Georgia Supreme Court would adopt a narrowing construction that would give some discernible content to § (b)(7). In the present case, no such narrowing construction was read to the jury or applied by the Georgia Supreme Court on appeal. As it has so many times in the past, that court upheld the jury's finding with a simple notation that it was supported by the evidence. The premise on which Gregg relied has thus proved demonstrably false. 44 For this reason, I readily agree with the plurality that, as applied in this case, § (b)(7) is unconstitutionally vague.1 The record unequivocally establishes that the trial judge, the prosecutor, and the jury did not believe that the evidence showed that either victim was tortured. Nor was there aggravated battery to the victims.2 I also agree that since the victims died instantaneously and within a few moments of each other, the fact that the murder weapon was one which caused extensive damage to the victim's body is constitutionally irrelevant. Ante, at 433, n. 16. 45 I am unwilling, however, to accept the plurality's characterization of the decision below as an aberrational lapse on the part of the Georgia Supreme Court from an ordinarily narrow construction of § (b)(7). Reasoning from two decisions rendered shortly after our decision in Gregg, Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977), and Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), the plurality suggests that from 1977 onward it has been the law of Georgia that a statutory aggravating circumstance can be found under § (b)(7) only if the offense involved torture and aggravated battery, manifested by "evidence of serious physical abuse of the victim before death." Ante, at 431.3 But we cannot stop reading the Georgia Reports after those two cases. In Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979), the court upheld a jury finding of a § (b)(7) aggravating circumstance stated in the words, "we the jurors conclude that this act was both horrible and inhuman." The case involved a shotgun murder of a child: no torture or aggravated battery was present. See also Holton v. State, 243 Ga. 312, 253 S.E.2d 736, cert. denied, 444 U.S. 925, 100 S.Ct. 263, 62 L.Ed.2d 181 (1979).4 The Georgia court's cursory treatment of § (b)(7) in Ruffin, Holton, and the present case indicates either that it has abandoned its intention of reaching only "core" cases under § (b)(7) or that its understanding of the "core" has become remarkably inclusive. 46 In addition, I think it necessary to emphasize that even under the prevailing view that the death penalty may, in some circumstances, constitutionally be imposed, it is not enough for a reviewing court to apply a narrowing construction to otherwise ambiguous statutory language. The jury must be instructed on the proper, narrow construction of the statute. The Court's cases make clear that it is the sentencer's discretion that must be channeled and guided by clear, objective, and specific standards. See ante, at 428. To give the jury an instruction in the form of the bare words of the statute—words that are hopelessly ambiguous and could be understood to apply to any murder, see ante, at 428-429; Gregg v. Georgia, 428 U.S. at 201, 96 S.Ct. at 2938—would effectively grant it unbridled discretion to impose the death penalty. Such a defect could not be cured by the post hoc narrowing construction of an appellate court. The reviewing court can determine only whether a rational jury might have imposed the death penalty if it had been properly instructed; it is impossible for it to say whether a particular jury would have so exercised its discretion if it had known the law. 47 For this reason, I believe that the vices of vagueness and intolerably broad discretion are present in any case in which an adequate narrowing construction of § (b)(7) was not read to the jury, and the Court's decision today cannot properly be restricted to cases in which the particular facts appear to be insufficiently heinous to fall within a construction of § (b)(7) that would be consistent with Gregg. II 48 The preceding discussion leads me to what I regard as a more fundamental defect in the Court's approach to death penalty cases. In Gregg, the Court rejected the position, expressed by my Brother BRENNAN and myself, that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. Instead it was concluded that in "a matter so grave as the determination of whether a human life should be taken or spared," it would be both necessary and sufficient to insist on sentencing procedures that would minimize or eliminate the "risk that [the death penalty] would be inflicted in an arbitrary and capricious manner." 428 U.S., at 189, 188, 96 S.Ct., at 2932 (opinion of STEWART, POWELL, and STEVENS, JJ.). Contrary to the statutes at issue in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), under which the death penalty was "infrequently imposed" upon "a capriciously selected random handful," id., at 309-310, 92 S.Ct., at 2762-2763 (STEWART, J., concurring), and "the threat of execution [was] too attenuated to be of substantial service to criminal justice," id., at 311-313, 92 S.Ct., at 2764 (WHITE, J., concurring), it was anticipated that the Georgia scheme would produce an even handed, objective procedure rationally " 'distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.' " Gregg v. Georgia, supra, 428 U.S. at 198, 96 S.Ct., at 2937, quoting Furman, supra, 408 U.S., at 313, 92 S.Ct., at 2764 (WHITE, J., concurring). 49 For reasons I expressed in Furman v. Georgia, supra, at 314-371, 92 S.Ct., at 2759-2793 (concurring opinion), and Gregg v. Georgia, supra, 428 U.S., at 231-241, 96 S.Ct. 2971, at 2973-2977 (dissenting opinion), I believe that the death penalty may not constitutionally be imposed even if it were possible to do so in an even handed manner. But events since Gregg make that possibility seem increasingly remote. Nearly every week of every year, this Court is presented with at least one petition for certiorari raising troubling issues of noncompliance with the strictures of Gregg and its progeny. On numerous occasions since Gregg, the Court has reversed decisions of State Supreme Courts upholding the imposition of capital punishment,5 frequently on the ground that the sentencing proceeding allowed undue discretion, causing dangers of arbitrariness in violation of Gregg and its companion cases. These developments, coupled with other persuasive evidence,6 strongly suggest that appellate courts are incapable of guaranteeing the kind of objectivity and evenhandedness that the Court contemplated and hoped for in Gregg. The disgraceful distorting effects of racial discrimination and poverty continue to be painfully visible in the imposition of death sentences.7 And while hundreds have been placed on death row in the years since Gregg,8 only three persons have been executed.9 Two of them made no effort to challenge their sentence and were thus permitted to commit what I have elsewhere described as "state-administered suicide." Lenhard v. Wolff, 444 U.S. 807, 815, 100 S.Ct. 29, 33, 62 L.Ed.2d 20 (1979) (dissenting opinion). See also Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). The task of eliminating arbitrariness in the infliction of capital punishment is proving to be one which our criminal justice system—and perhaps any criminal justice system—is unable to perform.10 In short, it is now apparent that the defects that led my Brothers DOUGLAS, STEWART, and WHITE to concur in the judgment in Furman are present as well in the statutory schemes under which defendants are currently sentenced to death. 50 The issue presented in this case usefully illustrates the point. The Georgia Supreme Court has given no real content to § (b)(7) in by far the majority of the cases in which it has had an opportunity to do so. In the four years since Gregg, the Georgia court has never reversed a jury's finding of a § (b)(7) aggravating circumstance.11 With considerable frequency the Georgia court has, as here, upheld the imposition of the death penalty on the basis of a simple conclusory statement that the evidence supported the jury's finding under § (b)(7).12 Instances of a narrowing construction are difficult to find, and those narrowing constructions that can be found have not been adhered to with any regularity. In no case has the Georgia court required a narrowing construction to be given to the jury—an indispensable method for avoiding the "standardless and unchanneled imposition of death sentences." Ante, at 429. Genuinely independent review has been exceedingly rare. In sum, I agree with the analysis of a recent commentator who, after a careful examination of the Georgia cases, concluded that the Georgia court has made no substantial effort to limit the scope of § (b)(7), but has instead defined the provision so broadly that practically every murder can fit within its reach. See Dix, Appellate Review of the Decision To Impose Death, 68 Geo.L.J. 97, 110-123 (1979). 51 The Georgia court's inability to administer its capital punishment statute in an even handed fashion is not necessarily attributable to any bad faith on its part; it is, I believe, symptomatic of a deeper problem that is proving to be genuinely intractable. Just five years before Gregg, Mr. Justice Harlan stated for the Court that the tasks of identifying "before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and [of] express[ing] these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be . . . beyond present human ability." McGautha v. California, 402 U.S. 183, 204, 91 S.Ct. 1454, 1466, 28 L.Ed.2d 711 (1971). From this premise, the Court in McGautha drew the conclusion that the effort to eliminate arbitrariness in the imposition of the death penalty need not be attempted at all. In Furman, the Court concluded that the arbitrary infliction of the death penalty was constitutionally intolerable. And in Gregg, the Court rejected the premise of McGautha and approved a statutory scheme under which, as the Court then perceived it, the death penalty would be imposed in an evenhanded manner. 52 There can be no doubt that the conclusion drawn in McGautha was properly repudiated in Furman, where the Court made clear that the arbitrary imposition of the death penalty is forbidden by the Eighth and Fourteenth Amendments. But I believe that the Court in McGautha was substantially correct in concluding that the task of selecting in some objective way those persons who should be condemned to die is one that remains beyond the capacities of the criminal justice system. For this reason, I remain hopeful that even if the Court is unwilling to accept the view that the death penalty is so barbaric that it is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, it may eventually conclude that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it—and the death penalty—must be abandoned altogether. 53 Mr. Chief Justice BURGER, dissenting. 54 After murdering his wife and mother-in-law, petitioner informed the police that he had committed a "hideous" crime. The dictionary defines hideous as "morally offensive," "shocking," or "horrible." Thus, the very curious feature of this case is that petitioner himself characterized his crime in terms equivalent to those employed in the Georgia statute. For my part, I prefer petitioner's characterization of his conduct to the plurality's effort to excuse and rationalize that conduct as just another killing. Ante, at 433. The jurors in this case, who heard all relevant mitigating evidence, see Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), obviously shared that preference; they concluded that this "hideous" crime was "outrageously or wantonly vile, horrible and inhuman" within the meaning of § (b)(7). 55 More troubling than the plurality's characterization of petitioner's crime is the new responsibility that it assumes with today's decision—the task of determining on a case-by-case basis whether a defendant's conduct is egregious enough to warrant a death sentence. In this new role, the plurality appears to require "evidence of serious physical abuse" before a death sentence can be imposed under § (b)(7). Ante, at 431. For me, this new requirement is arbitrary and unfounded and trivializes the Constitution. Consider, for example, the Georgia case of Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), where the defendant killed a young woman for the thrill of it. As he later confessed, he "didn't want nothing [she] got except [her] life." Id., at 720, 230 S.E.2d, at 4. Does the plurality opinion mean to suggest that anything in the Constitution precludes a state from imposing a death sentence on such a merciless, gratuitous killer? The plurality's novel physical torture requirement may provide an "objective" criterion, but it hardly separates those for whom a state may prescribe the death sentence from those for whom it may not. 56 In short, I am convinced that the course the plurality embarks on today is sadly mistaken—indeed confused. It is this Court's function to insure that the rights of a defendant are scrupulously respected; and in capital cases we must see to it that the jury has rendered its decision with meticulous care. But it is emphatically not our province to second-guess the jury's judgment or to tell the states which of their "hideous," intentional murderers may be given the ultimate penalty. Because the plurality does both, I dissent. 57 Mr. Justice WHITE, with whom Mr. Justice REHNQUIST joins, dissenting. 58 The sole question presented by this petition is whether, in affirming petitioner's death sentence, the Georgia Supreme Court adopted such a broad construction of Ga.Code § 27-2534.1(b)(7) (1978) as to violate the Eighth and Fourteenth Amendments to the United States Constitution. 59 * In early September 1977, Mrs. Godfrey, petitioner's wife, left him, moved in with her mother, and refused his entreaty to move back home. She also filed for divorce and charged petitioner with aggravated assault based on an incident in which he had cut some clothes off her body with a knife. On September 20, 1977, Mrs. Godfrey refused petitioner's request to halt divorce proceedings so that they could attempt a reconciliation. That same day petitioner carried his single-action shotgun to his mother-in-law's trailer home, where his wife, her mother, and the couple's 11-year-old daughter were playing a game around a table. Firing through a window, petitioner killed his wife with a shotgun blast to the head. As his daughter, running for help, attempted to rush past him, he struck her on the head with the barrel of the gun; she nonetheless was able to run on for help. Petitioner then reloaded his shotgun and, after entering the home, fired a fatal blast at his mother-in-law's head. After calling the police himself, petitioner was arrested, advised of his rights, and taken to the police station, where he told an officer that he had committed a "hideous crime" about which he had thought for eight years and that he would do it again. 60 Petitioner, over his defense of insanity, was convicted of the murders of his wife and his mother-in-law and of the aggravated assault of his daughter. He was sentenced to death for each of the murders and to 10 years' imprisonment for the aggravated assault. Under the Georgia death penalty scheme, a person can be sentenced to death only if "the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed." Ga.Code § 26-3102 (1978). The statutory aggravating circumstance upon which petitioner's sentence was premised reads: "The offense of murder . . . was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim." § 27-2534.1(b)(7) ("§ (b)(7)"). In petitioner's case, however, the jury, upon returning its recommendation of death, described the aggravating circumstance as follows: "[T]hat the offense of murder was outrageously or wantonly vile, horrible and inhuman." This attenuated statement of § (b)(7) in part forms the basis of petitioner's challenge to the Georgia Supreme Court's decision, for that court held that "[t]he evidence supports the jury's finding of statutory aggravating circumstances, and the jury's phraseology was not objectionable." 243 Ga. 302, 310, 253 S.E.2d 710, 718. II 61 In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), we upheld the constitutionality of the capital-sentencing procedures in accordance with which the State of Georgia has sentenced petitioner to death. Two aspects of that scheme impressed us in particular as curing the constitutional defects in the system that was invalidated several years earlier in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). First, the sentencing system specifies statutory aggravating circumstances, one of which has to be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed. Ga.Code §§ 26-3102, 27-2534.1 (1978). Second, the scheme provides for automatic appeal of all death sentences to the Georgia Supreme Court, which is required by statute to undertake a specific inquiry with respect to the soundness of the decision to impose the death penalty. § 27-2537.1 "In short, Georgia's new sentencing procedures require as a prerequisite to the imposition of the death penalty, specific jury findings as to the circumstances of the crime or the character of the defendant. Moreover, . . . the Supreme Court of Georgia compares each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate." 428 U.S., at 198, 96 S.Ct., at 2937 (opinion of STEWART, POWELL, and STEVENS, JJ.); seeid., at 204-206, 96 S.Ct., at 2939-2940; id., at 223-224, 96 S.Ct., at 2948 (opinion of WHITE, J.). Petitioner maintains that, at least in his case, the Georgia Supreme Court has failed in its review function because, by construing § (b)(7) to authorize the imposition of the death penalty on him, the court has interpreted that provision in an unconstitutionally broad fashion. 62 The opinion announcing the judgment of the Court in Gregg recognized that § (b)(7), which would authorize imposition of the death penalty here if either of the murders was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim," presented some potential interpretative difficulty because "arguabl[y] . . . any murder involves depravity of mind or an aggravated battery." 428 U.S., at 201, 96 S.Ct., at 2938 (opinion of STEWART, POWELL, and STEVENS, JJ.). "But," the opinion continued, "this language need not be construed in this way, and there is no reason to assumethat the Supreme Court of Georgia will adopt such an open-ended construction." Ibid. By concluding that the Supreme Court of Georgia has adopted "such an open-ended construction" in the present case, the Court has now turned a blind eye to the facts surrounding the murders of Mrs. Godfrey and her mother and to the constancy of the State Supreme Court in performance of its statutory review function. III 63 This case presents a preliminary difficulty because the sentencing jury found merely that "the offense of murder was outrageously or wantonly vile, horrible and inhuman," and did not repeat in its finding the entire incantation of § (b)(7). The Georgia Supreme Court found the jury's phraseology unobjectionable; and because this judgment was rendered in the same sentence in which the court expressed its determination that sufficient evidence supported the jury's finding of statutory aggravating circumstance § (b)(7), the court presumably believed that the jury's finding met all necessary terms of the provision notwithstanding the jury's abbreviated statement. 64 Petitioner argues, however, that the Georgia Supreme Court, by not deeming the jury's abbreviated statement as reversible error, has endorsed a view of § (b)(7) that allows for the provision's application upon a finding that a murder was "outrageously or wantonly vile, horrible or inhuman," even though the murder involved no "torture, depravity of mind, or . . . aggravated battery to the victim." Such a finding, petitioner contends, would be incomplete and indicative of an unconstitutionally broad construction of the provision, for the language "outrageously or wantonly vile, horrible or inhuman" cannot "objectively guide and channel jury discretion in the imposition of a death sentence in compliance with the command of the 8th and 14th Amendments. . . ." Brief for Petitioner 23. The plurality opinion seems to agree. Ante, at 428. 65 I find petitioner's argument unpersuasive, for it is apparent that both the jury and the Georgia Supreme Court understood and applied § (b)(7) in its entirety. The trial court instructed the jurors that they were authorized to fix petitioner's punishment for murder as death or imprisonment for life and that they could consider any evidence in mitigation. App. 79. They were also specifically instructed to determine whether there was a statutory aggravating circumstance present beyond a reasonable doubt and that the aggravating circumstance that they could consider was "[t]hat the offense of murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ibid.. That the jury's ultimate recitation of the aggravating circumstance was abbreviated reveals, in my view, no gap of constitutional magnitude in its understanding of its duty. It is perfectly evident, moreover, that, in exercising its review function, the Georgia Supreme Court understood that the provision applied in its entirety, just as in the past it has insisted that the provision be read as a whole and not be applied disjunctively. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 251 (1977); Holton v. State, 243 Ga. 312, 253 S.E.2d 736 (a finding of "depravity of mind" is insufficient to support a death sentence), cert. denied, 444 U.S. 925, 100 S.Ct. 263, 62 L.Ed.2d 181 (1979). The court, after quoting the language of the jury's finding, cited § (b)(7) and, more tellingly, referred to the discrepancy between the two versions as a mere problem of "phraseology." As such, the jury's version, in the court's view, "was not objectionable." 243 Ga., at 310, 253 S.E.2d, at 718. 66 Thus while both sides to this litigation felt constrained to engage in elaborate structural arguments regarding § (b)(7) focusing on grammar and syntax nuance and implication—I ascribe no constitutional significance at all to the jury's attenuated statement of the provision, and thus regard the question whether certain language in the section is severable from the rest as immaterial to the decision of this case. IV 67 The question remains whether the facts of this case bear sufficient relation to § (b)(7) to conclude that the Georgia Supreme Court responsibly and constitutionally discharged its review function. I believe that they do. 68 As described earlier, petitioner, in a cold blooded executioner's style, murdered his wife and his mother-in-law and, in passing, struck his young daughter on the head with the barrel of his gun. The weapon, a shotgun, is hardly known for the surgical precision with which it perforates its target. The murder scene, in consequence, can only be described in the most unpleasant terms. Petitioner's wife lay prone on the floor. Mrs. Godfrey's head had a hole described as "[a]pproximately the size of a silver dollar" on the side where the shot entered, and much less decipherable and more extensive damage on the side where the shot exited. Tr. 259. Pellets that had passed through Mrs. Godfrey's head were found embedded in the kitchen cabinet. 69 It will be remembered that after petitioner inflicted this much damage, he took out time not only to strike his daughter on the head, but also to reload his single-shot shotgun and to enter the house. Only then did he get around to shooting his mother-in-law, Mrs. Wilkerson whose last several moments as a sentient being must have been as terrifying as the human mind can imagine. The police eventually found her facedown on the floor with a substantial portion of her head missing and her brain, no longer cabined by her skull, protruding for some distance onto the floor. Blood not only covered the floor and table, but dripped from the ceiling as well. 70 The Georgia Supreme Court held that these facts supported the jury's finding of the existence of statutory aggravating circumstance § (b)(7). A majority of this Court disagrees. But this disagreement, founded as it is on the notion that the lower court's construction of the provision was overly broad, in fact reveals a conception of this Court's role in backstopping the Georgia Supreme Court that is itself overly broad. Our role is to correct genuine errors of constitutional significance resulting from the application of Georgia's capital sentencing procedures; our role is not to peer majestically over the lower court's shoulder so that we might second-guess its interpretation of facts that quite reasonably—perhaps even quite plainly—fit within the statutory language.2 71 Who is to say that the murders of Mrs. Godfrey and Mrs. Wilkerson were not "vile," or "inhuman," or "horrible" ? In performing his murderous chore, petitioner employed a weapon known for its disfiguring effects on targets, human or other, and he succeeded in creating a scene so macabre and revolting that, if anything, "vile," "horrible," and "inhuman" are descriptively inadequate. 72 And who among us can honestly say that Mrs. Wilkerson did not feel "torture" in her last sentient moments. Her daughter, an instant ago a living being sitting across the table from Mrs. Wilkerson, lay prone on the floor, a bloodied and mutilated corpse. The seconds ticked by; enough time for her son-in-law to reload his gun, to enter the home, and to take a gratuitous swipe at his daughter. What terror must have run through her veins as she first witnessed her daughter's hideous demise and then came to terms with the imminence of her own. Was this not torture? And if this was not torture, can it honestly be said that petitioner did not exhibit a "depravity of mind" in carrying out this cruel drama to its mischievous and murderous conclusion? I should have thought, moreover, that the Georgia court could reasonably have deemed the scene awaiting the investigating policemen as involving "an aggravated battery to the victim[s]." Ga.Code § 27-2534.1(b)(7) (1978). 73 The point is not that, in my view, petitioner's crimes were definitively vile, horrible, or inhuman, or that, as I assay the evidence, they beyond any doubt involved torture, depravity of mind, or an aggravated battery to the victims. Rather, the lesson is a much more elementary one, an instruction that, I should have thought, this Court would have taken to heart long ago. Our mandate does not extend to interfering with factfinders in state criminal proceedings or with state courts that are responsibly and consistently interpreting state law, unless that interference is predicated on a violation of the Constitution. No convincing showing of such a violation is made here, for, as Mr. Justice STEWART has written in another place the issue here is not what our verdict would have been, but whether "any rational factfinder" could have found the existence of aggravating circumstance § (b)(7). Jackson v. Virginia, 443 U.S. 307, 313, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979). Faithful adherence to this standard of review compels our affirmance of the judgment below.3 V 74 Under the present statutory regime, adopted in response to Furman, the Georgia Supreme Court has responsibly and consistently performed its review function pursuant to the Georgia capital-sentencing procedures. The State reports that, at the time its brief was written, the Georgia Supreme Court had reviewed some 99 cases in which the death penalty has been imposed. Of these, 66 had been affirmed; 5 had been reversed for errors in the guilt phase; and 22 had been reversed for errors in the sentencing phase.4 Brief for Respondent 13-14. This reversal rate of over 27% is not substantially lower than the historic reversal rate of state supreme courts. See Courting Reversal: The Supervisory Role of State Supreme Courts, 87 Yale L.J. 1191, 1198, 1209 (1978), where it is indicated that 16 state supreme courts over a 100-year period, in deciding 5,133 cases, had a reversal rate of 38.5%; for criminal cases, the reversal rate was 35.6%. To the extent that the reversal rate is lower than the historic level, it doubtless can be attributed to the great and admirable extent to which discretion and uncertainty have been removed from Georgia's capital-sentencing procedures since our decision in Furman and to the fact that review is mandatory. See 87 Yale L. J., 1200-1201. 75 The Georgia Supreme Court has vacated a death sentence where it believed that the statutory sentencing procedures, as passed by the legislature, were defective, Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974) (holding, inter alia, that the death penalty for armed robbery was impermissible), aff'd on other grounds, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); it has held that jurors must be instructed that they can impose a life sentence even though they find the existence of a statutory aggravating circumstance, Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977); it has reversed the imposition of the death penaltywhere the prosecutor made an improper comment during his argument to the jury in the sentencing phase, Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365 (1975); Jordan v. State, 233 Ga. 929, 214 S.E.2d 365 (1975); it has reversed a trial court's decision limiting the type of mitigating evidence that could be presented, Brown v. State, 235 Ga. 644, 220 S.E.2d 922 (1975); it has set aside a death sentence when jurors failed to specify which aggravating circumstances they found to exist, Sprouse v. State, 242 Ga. 831, 252 S.E.2d 173 (1979); it has reversed a death sentence imposed on a partial finding of an aggravating circumstance, Holton v. State, 243 Ga. 312, 253 S.E.2d 736, cert. denied, 444 U.S. 925, 100 S.Ct. 263, 62 L.Ed.2d 181 (1979); it has disapproved a death penalty because of errors in admitting evidence, Stack v. State, 234 Ga. 19, 214 S.E.2d 514 (1975); it has reversed a capital sentence where a codefendant received only a life sentence, Hall v. State, 241 Ga. 252, 244 S.E.2d 833 (1978); and it has held a statutory aggravating circumstance to be unconstitutional, Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976). 76 The Georgia Supreme Court has also been responsible and consistent in its construction of § (b)(7). The provision has been the exclusive or nonexclusive basis for imposition of the death penalty in over 30 cases. In one excursus on the provision's language, the court in effect held that the section is to be read as a whole, construing "depravity of mind," "torture," and "aggravated battery" to flesh out the meaning of "vile," "horrible," and "inhuman." Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 251 (1977). I see no constitutional error resulting from this understanding of the provision. Indeed, the Georgia Supreme Court has expressly rejected an analysis that would apply the provision disjunctively, Holton v. State, supra, an analysis that, if adopted, would arguably be assailable on constitutional grounds. And the court has noted that it would apply the provision only in "core" cases and would not permit § (b)(7) to become a "catchall." Harris v. State, supra.5 77 Nor do the facts of this case stand out as an aberration. A jury found § (b)(7) satisfied, for example, when a child was senselessly and ruthlessly executed by a murderer who, like petitioner, accomplished this end with a shotgun. The Georgia Supreme Court affirmed. Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472, cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 425 (1979). See Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977). The court has also affirmed a jury's finding of statutory aggravating circumstance, § (b)(7) where, as here, there was substantial disfigurement of the victim, McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), cert. denied, 428 U.S. 910, 96 S.Ct. 3223, 49 L.Ed.2d 1218 (1976), and where, as arguably with Mrs. Wilkerson, there was torture of the victim, ibid.; Birt v. State, 236 Ga. 815, 225 S.E.2d 248, cert. denied, 429 U.S. 1029, 97 S.Ct. 654, 50 L.Ed.2d 632 (1976). 78 The majority's attempt to drive a wedge between this case and others in which § (b)(7) has been applied is thus unconvincing, as is any suggestion that the Georgia Supreme Court has somehow failed overall in performance of its review function.6 VI 79 In the circumstances of this case, the majority today endorses the argument that I thought we had rejected in Gregg : namely, "that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it." 428 U.S., at 226, 96 S.Ct., at 2949 (opinion of WHITE, J.). The Georgia Supreme Court, faced with a seemingly endless train of macabre scenes, has endeavored in a responsible, rational, and consistent fashion to effectuate its statutory mandate as illuminated by our judgment in Gregg. Today, a majority of this Court, its arguments shredded by its own illogic, informs the Georgia Supreme Court that, to some extent, its efforts have been outside the Constitution. I reject this as an unwarranted invasion into the realm of state law, for, as in Gregg, "I decline to interfere with the manner in which Georgia has chosen to enforce [its] laws" until a genuine error of constitutional magnitude surfaces. Ibid. (opinion of WHITE, J.). 80 I would affirm the judgment of the Supreme Court of Georgia. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 Georgia Code § 26-1101 (1978) defines "murder" as follows: "(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart. "(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice." 2 The other statutory aggravating circumstances upon which a death sentence may be based after conviction of murder in Georgia are considerably more specific or objectively measurable than § (b)(7): "(1) The offense of murder . . . was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions. "(2) The offense of murder . . . was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree. "(3) The offender by his act of murder . . . knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person. "(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value. "(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty. "(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person. * * * * * "(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties. "(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement. "(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." Ga.Code § 27-2534.1(b) (1978). In Arnold v. State, 236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976), the Supreme Court of Georgia held unconstitutional the portion of the first statutory aggravating circumstances encompassing persons who have a "substantial history of serious assaultive criminal convictions" because it did not set "sufficiently 'clear and objective standards.' " 3 According to the petitioner, this was not the first time that he and his wife had been separated as a result of his violent behavior. On two or more previous occasions the petitioner had been hospitalized because of his drinking problem. 4 Another question on the form asked the trial judge to list the mitigating circumstances that were in evidence. The judge noted that the petitioner had no significant history of prior criminal activity. 5 Gregg v. Georgia, 428 U.S., at 198, 96 S.Ct., at 2936, quoting Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974). 6 Proffitt v. Florida, 428 U.S., at 253, 96 S.Ct., at 2967 (opinion of STEWART, POWELL, and STEVENS, JJ.). 7 Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (opinion of STEWART, POWELL, and STEVENS, JJ.). 8 See also Ruffin v. State, 243 Ga. 95, 106-107, 252 S.E.2d 472, 480 (1979); Hill v. State, 237 Ga. 794, 802, 229 S.E.2d 737, 742-743 (1976). Cf. Holton v. State, 243 Ga. 312, 318, 253 S.E.2d 736, 740 (1979). 9 Gregg v. Georgia, supra, at 201, 96 S.Ct., at 2938. 10 Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976); McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974). 11 Since Harris and Blake, the court has summarily rejected all constitutional challenges to its construction of § (b)(7). See, e. g., Baker v. State, 243 Ga. 710, 711-712, 257 S.E.2d 192, 193-194 (1979); Collins v. State, 243 Ga. 291, 294, 253 S.E.2d 729, 732 (1979); Johnson v. State, 242 Ga. 649, 651, 250 S.Ed.2d 394, 397-398 (1978); Lamb v. State, 241 Ga. 10, 15, 243 S.E.2d 59, 63 (1978). 12 This construction of § (b)(7) finds strong support in the language and structure of the statutory provision. 13 "Aggravated battery" is a term that is defined in Georgia's criminal statutes. Georgia Code § 26-1305 (1978) states: "A person commits aggravated battery when he maliciously causes bodily harm to another by depriving him of a member of his body, or by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof." It appears that this definition has on at least one occasion been treated by the state trial courts as controlling the meaning of the same words in § (b)(7). See, e. g., Holton v. State, 243 Ga., at 317, n. 1, 253 S.E.2d, at 740, n. 1. We note, however, that the Harris case apparently did not involve "torture" in this sense. 14 See, e. g., Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1977); Stanley v. State, 240 Ga. 341, 241 S.E.2d 173 (1977); Dix v. State, 238 Ga. 209, 232 S.E.2d 47 (1977); Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (1976); McCorquodale v. State, supra. 15 The sentences of death in this case rested exclusively on § (b)(7). Accordingly, we intimate no view as to whether or not the petitioner might constitutionally have received the same sentences on some other basis. Georgia does not, as do some States, make multiple murders an aggravating circumstance, as such. 16 In light of this fact, it is constitutionally irrelevant that the petitioner used a shotgun instead of a rifle as the murder weapon, resulting in a gruesome spectacle in his mother-in-law's trailer. An interpretation of § (b)(7) so as to include all murders resulting in gruesome scenes would be totally irrational. 1 My Brother WHITE appears to mischaracterize today's holding in suggesting that a "majority of this Court disagrees" with the conclusion that the "facts supported the jury's finding of the existence of statutory aggravating circumstance § (b)(7)." Post, at 449. The question is not whether the facts support the jury's finding. As in any case raising issues of vagueness, the question is whether the court below has adopted so ambiguous a construction of the relevant provision that the universe of cases that it comprehends is impermissibly large, thus leaving undue discretion to the decisionmaker and creating intolerable dangers of arbitrariness and caprice. 2 Georgia Code § 26-1305 (1978) provides, in pertinent part: "A person commits aggravated battery when he maliciously causes bodily harm to another by depriving him of a member of his body, or by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof." 3 My Brother WHITE also assumes that § (b)(7) "applie[s] in its entirety," post, at 448, so that the aggravating circumstance cannot be found unless the jury finds torture, depravity of mind, or aggravated battery to the victim. 4 In Holton v. State, the defendant murdered a husband and wife. Both victims died of gunshot wounds. The husband had sustained wounds to his ear and shoulder which were apparently caused by blows from a tomahawk. The wife had been stabbed in the back and her ear almost severed after she died. The jury was instructed in the language of § (b)(7), but the word "torture" was omitted since there was no evidence of torture before the deaths occurred. The court also instructed the jury on the statutory definition of aggravated battery, but informed them that they could not find an aggravated battery to the wife. The jury found as an aggravating circumstance the fact that the murder was committed "by reason of depravity of mind." The Georgia Supreme Court indicated in dictum that the omission of the words "outrageously or wantonly vile, horrible or inhuman," rendered the finding impermissibly vague, but did not comment on the instructions to the jury. Apparently, then, the court would have permitted the jury to find that the murder of the wife fell within § (b)(7) even though there was neither torture nor aggravated battery. See also n. 11, infra. 5 See, e. g., Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978); Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Downs v. Ohio, 438 U.S. 909, 98 S.Ct. 3183, 57 L.Ed.2d 1153 (1978); Shelton v. Ohio, 438 U.S. 909, 98 S.Ct. 3133, 57 L.Ed.2d 1153 (1978); Woods v. Ohio, 438 U.S. 910, 98 S.Ct. 3133, 57 L.Ed.2d 1153 (1978); Roberts v. Ohio, 438 U.S. 910, 98 S.Ct. 3134, 57 L.Ed.2d 1154 (1978); Jordan v. Arizona, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Eberheart v. Georgia, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977); Hooks v. Georgia, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). 6 See generally Dix, Appellate Review of the Decision To Impose Death, 68 Geo.L.J. 97 (1979). Professor Dix's meticulous study of the process of appellate review in Georgia, Florida, and Texas since 1976 demonstrates that "objective standards" for the imposition of the death penalty have not been achieved and probably are impossible to achieve, and concludes that Gregg and its companion cases "mandate pursuit of an impossible goal." Id., 68 Geo.L.J., at 161. 7 On April 20, 1980, for example, over 40% of the persons on death row were Negroes. See NAACP Legal Defense and Educational Fund, Death Row, U. S. A., 1 (Apr. 20, 1980). See also U. S. Department of Justice, Capital Punishment 1978, pp. 25-30 (1979); Furman v. Georgia, 408 U.S. 238, 249-257, 92 S.Ct. 2726, 2731-2735, 33 L.Ed.2d 346 (1972) (Douglas, J., concurring). 8 See NAACP Legal Defense and Educational Fund, Death Row, U. S. A. (Apr. 20, 1980) (642 people on death row); U. S. Department of Justice, Capital Punishment 1978, p. 1 (1979) (445 people on death row as of December 31, 1978). 9 In Furman, my Brothers STEWART and WHITE concurred in the judgment largely on the ground that the death penalty had been so infrequently imposed that it made no contribution to the goals of punishment. Mr. Justice STEWART stated that "the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed." Furman v. Georgia, 408 U.S., at 309-310, 92 S.Ct., at 2762. Mr. Justice WHITE relied on his conclusion that "the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice." Id., at 313, 92 S.Ct., at 2764. These conclusions have proved to be equally valid under the sentencing schemes upheld in Gregg. 10 See C. Black, Capital Punishment: The Inevitability of Caprice and Mistake (1974); Black, Due Process for Death: Jurek v. Texas and Companion Cases, 26 Cath.U.L.Rev. 1 (1976). 11 In Holton v. State, 243 Ga. 312, 253 S.E.2d 736, cert. denied, 444 U.S. 925, 100 S.Ct. 263, 62 L.Ed.2d 181 (1979), the court reversed a sentence of death on the grounds that the trial judge had given an inadequate charge on mitigating circumstances and that the jury had not been informed that it could recommend a life sentence even though it found a statutory aggravating circumstance. Although in dictum it indicated disapproval of a statutory circumstance based solely on depravity of mind, the court did not reverse the jury's finding under § (b)(7). See also n. 4, supra. 12 See Willis v. State, 243 Ga. 185, 253 S.E.2d 70, cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979); Baker v. State, 243 Ga. 710, 257 S.E.2d 192 (1979); Legare v. State, 243 Ga. 744, 257 S.E.2d 247, cert. denied, 444 U.S. 984, 100 S.Ct. 491, 62 L.Ed.2d 413 (1979); Green v. State, 242 Ga. 261, 249 S.E.2d 1 (1978), rev'd on other grounds, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979); Young v. State, 239 Ga. 53, 236 S.E.2d 1, cert. denied, 434 U.S. 1002, 98 S.Ct. 648, 54 L.Ed.2d 499 (1977); Gaddis v. State, 239 Ga. 238, 236 S.E.2d 594 (1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794 (1978); Davis v. State, 236 Ga. 804, 225 S.E.2d 241, rev'd on other grounds, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975), cert. denied, 428 U.S. 910, 96 S.Ct. 3223, 49 L.Ed.2d 1218 (1976); Floyd v. State, 233 Ga. 280, 210 S.E.2d 810 (1974), cert. denied, 431 U.S. 949, 97 S.Ct. 2667, 53 L.Ed.2d 266 (1977); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976). The Georgia court has given an extraordinarily broad meaning to the word "torture." Under that court's view, "torture" may be present whenever the victim suffered pain or anticipated the prospect of death. See Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1977), cert. denied, 439 U.S. 882, 99 S.Ct. 218, 58 L.Ed.2d 194 (1978); Blake v. State, 239 Ga. 292, 236 S.E.2d 637, cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977). That interpretation would of course enable a jury to find a § (b)(7) aggravating circumstance in most murder cases. 1 According to the statute, the Georgia Supreme Court must determine: "(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and "(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27-2534.1(b), and "(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Ga.Code § 27-2537(c) (1978). 2 The plurality opinion, ante, at 433, and n. 16, states that "[a]n interpretation of § (b)(7) so as to include all murders resulting in gruesome scenes would be totally irrational" and that the fact that both "victims were killed instantaneously" makes the gruesomeness of the scene irrelevant. This view ignores the indisputable truth that Mrs. Wilkerson did not die "instantaneously"; she had many moments to contemplate her impending death, assuming that the stark terror she must have felt permitted any contemplation. More importantly, it also ignores the obvious correlation between gruesomeness and "depravity of mind," between gruesomeness and "aggravated battery," between gruesomeness and "horrible," between gruesomeness and "vile," and between gruesomeness and "inhuman." Mere gruesomeness, to be sure, would not itself serve to establish the existence of statutory aggravating circumstance. § (b)(7). But it certainly fares sufficiently well as an indicator of this particular aggravating circumstance to signal to a reviewing court the distinct possibility that the terms of the provision, upon further investigation, might well be met in the circumstances of the case. 3 The plurality opinion notes that the prosecutor informed the jury that the case involved no torture or aggravated battery and suggests that this fact somehow undermines the belief that a properly complete understanding of § (b)(7) was applied in this case. Ante, at 426, 432. But as I observe in text, the trial court judge instructed the jurors to consider § (b)(7) in its entirety and thus did not impose a similarly circumscribed view of the case on the jurors. At any event, the prosecutor did argue to the jury that there was depravity of mind. App. 76. The plurality also notes that in the sentencing report filled out by the trial judge, he wrote that the victims here had not been physically harmed or tortured beyond the fact of their murders. But any argument supportive of the majority's position based on the judge's sentencing report is undermined by the plurality opinion itself. For that opinion makes clear that the Georgia Supreme Court, in the course of exercising its review function, has developed "criteria" to guide its application of § (b)(7), criteria of which this Court's plurality apparently approves. Ante, at 429. Surely a court capable of developing such criteria is also capable of keeping them in mind when deciding the latest case to involve the statutory provision that gave birth to the criteria in the first place. Yet the plurality does not recognize the seemingly inescapable conclusion that the Georgia Supreme Court, when affirming petitioner's convictions and sentences, matched the facts of this case to its understanding of the statute and, irrespective of the trial judge's comments, concluded that § (b)(7) properly formed the basis for the imposition of the death penalty. The plurality instead seems to adopt the curious notion that a trial judge is capable of binding an appellate court in the performance of its statutory duty to review trial court determinations. The plurality opinion also is troubled by the fact that the trial judge gave no guidance to the jurors by way, presumably, of defining the terms in § (b)(7). Ante, at 429. Yet the opinion does not demonstrate that such definitions were provided in cases in which the plurality would agree that § (b)(7) was properly applied. Nor does the opinion demonstrate that such definitions obtain a constitutional significance apart from an independent showing—absent here—that juries and courts cannot rationally apply an unequivocal legislative mandate. 4 This Court has reversed six of the cases owing to errors of law rising to constitutional significance. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (relevant evidence was improperly excluded from the sentencing hearing); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) (Georgia Supreme Court erred by affirming a death sentence for murder based on an underlying rape charge of which the defendant was not properly tried and convicted); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (under the Eighth and Fourteenth Amendments, death is an excessive penalty for a rapist who does not also commit murder); Eberheart v. Georgia, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977) (same as Coker ); Hooks v. Georgia, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977) (same as Coker ); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) (a prospective juror was excluded from jury service in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)). 5 The cases in which a jury has found the existence of § (b)(7) as the sole basis for imposition of the death penalty include Spraggins v. State, 243 Ga. 73, 252 S.E.2d 620 (1979), (affirming death sentence for a murder involving multiple stab wounds and partial disembowelment) cert. pending, No. 79-5032; Holton v. State, 243 Ga. 312, 253 S.E.2d 736, (reversing death sentence because the jury's finding stated only "depravity of mind") cert. denied, 444 U.S. 925, 100 S.Ct. 263, 62 L.Ed.2d 181 (1979); Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979), (case below) (affirming death penalty for shotgun shooting resulting in mutilation); Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978) (affirming death sentence for rape and shooting of two women); Morgan v. State, 241 Ga. 485, 246 S.E.2d 198 (1978), (affirming death sentence for shotgun shooting of blindfolded victim begging for his life) cert. denied, 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073 (1979); Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (1977) (reversing death sentence for stabbing murders because a previous trial had ended in a life sentence; thus death penalty here would be disproportionate); Blake v. State, 239 Ga. 292, 236 S.E.2d 637, (affirming death sentence for murder of a child effected by her being thrown off a bridge), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); Dix v. State, 238 Ga. 209, 232 S.E.2d 47 (1977) (affirming death sentence for murder accomplished by beating, strangling, and stabbing the victim); Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976) (affirming death sentence for shooting murder of victim who was forced to beg for her life), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 251 (1977); Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976) (affirming death sentence for shotgun murder of two victims), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977); Hooks v. State, 233 Ga. 149, 210 S.E.2d 668 (1974) (affirming death sentence solely for rape), sentence vacated, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977). 6 The plurality opinion states that there is no indication that petitioner's mind was any more depraved than that of any other murderer. Ante, at 433. The Court thus assumes the role of a finely tuned calibrator of depravity, demarcating for a watching world the various gradations of dementia that lead men and women to kill their neighbors. I should have thought that, in light of our other duties, such a function would better be performed by the state court statutorily charged with the mission. And unless this Court is willing to supplant the Georgia Supreme Court in the statutory scheme, it would be well advised to reconsider its position.

01

446 U.S. 540 100 S.Ct. 2911 64 L.Ed.2d 485 State of TEXAS, Plaintiff,v.State of NEW MEXICO No. 65 Supreme Court of the United States May 19, 1980 Rehearing Denied June 30, 1980. See 448 U.S. 907, 100 S.Ct. 3051. On Exceptions to Report of Special Master. PER CURIAM. 1 Upon consideration of the report filed October 15, 1979, by Senior Judge Jean S. Breitenstein, Special Master, and the exceptions thereto, and on consideration of briefs and oral argument thereon, 2 IT IS ADJUDGED, ORDERED, AND DECREED that all exceptions are overruled, the report is in all respects confirmed, and the ruling of the Special Master on the "1947 condition" as that term appears in Arts. II(g) and III(a) of the Pecos River Compact is approved. 3 Mr. Justice STEVENS, dissenting. 4 Under the Pecos River Compact of 1949, ch. 184, 63 Stat. 159, the State of New Mexico has a duty "not [to] deplete by man's activities the flow of the Pecos River at the New Mexico-Texas state line below an amount which will give to Texas a quantity of water equivalent to that available to Texas under the 1947 condition." 5 Article VI(c) of the Compact provides that the "inflow-outflow" method is to be used to determine whether New Mexico is complying with this obligation.1 Briefly stated, this method involves the development of a correlation between the inflow to a basin and the expected outflow so that, for any given inflow, engineers can estimate the amount of water that should flow through and should therefore be available for downstream (in this case Texas') use. In a river routing study made available to the Commissioners prior to the signing of the Compact, engineers attempted to develop such a correlation for the Pecos by calculating for each year from 1905 to 1946 what the outflow would have been at various points if the New Mexico water uses in place in 1947 had been in place in prior years as well. This study was then to be used as a baseline in comparing future inflow and outflow in order to determine whether New Mexico was using a larger share of the river water than it had in 1947, in violation of the Compact. 6 For years after the Compact was signed, there were disputes between the States over the proper application of the inflow-outflow method. Both sides recognized that the routing study contained some errors, and they attempted to correct those errors through negotiation. When negotiations ultimately failed, Texas brought this suit, alleging that New Mexico had breached its obligations under the Compact by using more water than it was entitled to use under the proper definition of the "1947 condition." 7 One of the main issues before the Special Master was the meaning of the term "1947 condition." The Master found that the term referred only to depletions due to the New Mexico water uses that were in place in 1947, along with certain projected uses.2 He therefore held that the errors in the old routing study had to be corrected before that study could be used in determining compliance. In its objections to the Master's report, Texas takes the position that the "1947 condition" refers not to actual physical conditions on the river, but rather to the baseline values developed through the 1947 routing study. It therefore argues that, in the absence of agreement, the parties must continue to use that study, despite its errors, in determining compliance. 8 The objections filed on behalf of the State of Texas persuade me that the Master's definition is not the one the two States agreed upon when they entered into the Compact. Article II(g) provides that, as used in the Compact: 9 "The term '1947 condition' means that situation in the Pecos River Basin as described and defined in the Report of the Engineering Advisory Committee. In determining any question of fact hereafter arising as to such situation, reference shall be made to, and decisions shall be based on, such report." 10 The routing study that Texas relies upon was a part of the Report of the Engineering Advisory Committee as that term is defined in the Compact.3 It therefore, in my opinion, became a part of the Compact definition of the 1947 condition to which the parties agreed. Although this concededly makes the term "1947 condition" an "artificial" definition, rather than a description of actual conditions, the fact that the parties agreed to base their decisions on all questions of fact on that Report indicates that the parties also agreed to use the routing study as a basic frame of reference. Moreover, had the parties merely intended to describe the New Mexico water uses that existed in 1947, I believe they would have used language similar to that employed by the Master and would not have included the detailed reference to the Report of the Engineering Advisory Committee in both Arts. II(g) and II(f). Finally, the fact that the parties later recognized some errors in that study and attempted to rectify them through negotiation does not, in my judgment, change the meaning of the Compact itself. Accordingly, I would sustain the objections of the State of Texas. 1 This method is to be used "unless and until a more feasible method is devised." See Art. VI(c). In this proceeding the States agree that the inflow-outflow method continues to apply. 2 The Master defined the term as follows: "The 1947 condition is that situation in the Pecos River Basin which produced in New Mexico the man-made depletions resulting from the stage of development existing at the beginning of the year 1947 and from the augmented Fort Sumner and Carlsbad acreage." 3 The routing study was Appendix A to the Report. Article II(f) provides: "The term 'Report of the Engineering Advisory Committee' means that certain report of the Engineering Advisory Committee dated January 1948, and all appendices thereto; including, basic data, processes, and analyses utilized in preparing that report, all of which were reviewed, approved, and adopted by the Commissioners signing this Compact at a meeting held in Santa Fe, New Mexico, on December 3, 1948, and which are included in the Minutes of that meeting."

1011

446 U.S. 478 100 S.Ct. 1790 64 L.Ed.2d 440 BOARD OF REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK et al., Petitioners,v.Mary TOMANIO. No. 79-424. Argued Feb. 26, 1980. Decided May 19, 1980. Syllabus * Pursuant to New York statutes requiring that chiropractic practitioners obtain a state license either by passing an examination or obtaining a waiver of the examination requirement from petitioner Board of Regents (Board), respondent practitioner applied to the Board for a waiver of the examination requirement. In November 1971, the Board notified respondent that her waiver application was denied, but respondent was not afforded an evidentiary hearing or given a statement of reasons for the denial. In January 1972, respondent commenced state-court proceedings, attacking the Board's decision as arbitrary and capricious but not raising any constitutional challenge to the decision. Ultimately, in November 1975, the New York Court of Appeals affirmed an order holding that the Board had not abused its discretion in denying respondent's waiver application. In June 1976, respondent instituted this action in Federal District Court under 42 U.S.C. § 1983, alleging that petitioners' refusal to grant her a license violated due process as guaranteed by the Fourteenth Amendment. Holding that the § 1983 action was not barred by the applicable 3-year New York statute of limitations even though respondent's claim arose in November 1971 when her waiver application was denied by the Board, the District Court concluded that it was appropriate to adopt a federal rule to toll the running of the statute of limitations during the pendency of respondent's state-court litigation. Under the New York tolling rule the time for filing an action is not tolled during the period in which a litigant pursues a related but independent cause of action. On the merits of the federal constitutional claim, the District Court held that respondent was entitled to a hearing before the Board on her eligibility for waiver of the examination requirement. The Court of Appeals affirmed as to both the statute of limitations issue and the merits. Held : Respondent's action was barred by the New York statute of limitations. The federal courts were obligated not only to apply the analogous New York statute of limitations to respondent's federal constitutional claims, but also to apply the New York rule for tolling that statute of limitations. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554; Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. Pp. 483-492. (a) Under 42 U.S.C. § 1988, federal courts are instructed to refer to state statutes when federal law provides no rule of decision for actions brought under § 1983, and § 1988 authorizes federal courts to disregard an otherwise applicable state rule of law only if the state law is "inconsistent with the Constitution and laws of the United States." Since Congress did not establish a statute of limitations or a body of tolling rules applicable to federal-court actions under § 1983, the analogous state statute of limitations and the coordinate tolling rules are binding rules of law in most cases. This "borrowing" of the state statute of limitations includes rules of tolling unless they are "inconsistent" with federal law. Pp. 483-486. (b) New York's tolling rule is not "inconsistent" with the policies of deterrence and compensation underlying § 1983. Neither of these policies are significantly affected by New York's rule since plaintiffs can still readily enforce their claims, thereby recovering compensation and fostering deterrence, simply by commencing their actions within three years. And there is no need for nationwide uniformity so as to warrant displacement of state statutes of limitations for civil rights actions. Nor are policies of federalism undermined by adoption of the New York rule. When Congress establishes a remedy (such as § 1983) separate and independent from other remedies that might also be available, a state rule which does not allow a plaintiff to litigate such alternative claims in succession, without risk of a time bar, is not "inconsistent." Pp. 486-492. 603 F.2d 255, reversed. Donald O. Meserve, Albany, N. Y., for petitioners. Vincent J. Mutari, Garden City, N. Y., for respondent. Mr. Justice REHNQUIST delivered the opinion of the Court. 1 We granted certiorari in this case, 444 U.S. 939, 100 S.Ct. 291, 62 L.Ed.2d 305, to review a judgment of the Court of Appeals for the Second Circuit, 603 F.2d 255, holding that petitioners, the Board of Regents of the University of the State of New York and the Commissioner of Education, were required by the Fourteenth Amendment to the United States Constitution, to afford a hearing to respondent, Mary Tomanio, before denying her request for a waiver of professional licensing examination requirements. In so doing, the Court of Appeals rejected petitioners' claims that both the statute of limitations and the doctrine of estoppel by judgment barred respondent's maintenance of an action under 42 U.S.C. § 1983 in the federal courts. We find it necessary to consider only the defense based on the statute of limitations, since the resolution of that issue is virtually foreordained in favor of petitioners by our prior cases when the indisputably lengthy series of events which ultimately brought this case here is described. 2 * Respondent has practiced chiropractic medicine in the State of New York since 1958. Prior to 1963, the State did not require chiropractic practitioners to be licensed. But in that year the State enacted a statute which required state licensing, and established three separate methods by which applicants could obtain a license to practice chiropractic in the State of New York. 1963 N.Y.Laws, ch. 780, codified as amended, N.Y.Educ.Law §§ 6506(5), 6554, 6556 (McKinney, 1972 and Supp. 1979-1980). First, the statute established education and examination requirements for applicants who had not previously engaged in chiropractic practice. An alternative qualifying examination was made available to individuals already engaged in practice in New York on the date that the licensing statute became effective. Finally, the Act established a third means for current practitioners to qualify without taking any state-administered examination. Under § 6506(5), they could obtain a waiver of "education, experience and examination requirements for a professional license . . . provided the board of regents shall be satisfied that the requirements of such article have been substantially met."1 3 Respondent has been unsuccessful in her efforts to obtain a license to practice in New York. On seven separate occasions between 1964 and 1971, she attempted to qualify by taking the special examinations designed for current practitioners. Respondent failed, by a narrow margin, to ever receive a passing score on the examinations.2 After this series of failures, she applied to the Board of Regents for waiver of the examination requirements pursuant to § 6506(5). This application was based upon her claim that she had failed the examinations by only a very narrow margin, that she was licensed in the States of Maine and New Hampshire, and that she had passed an examination given by the National Board of Chiropractic Examiners. On November 22, 1971, the Board notified respondent that they had voted to deny her application for a waiver at a meeting held on November 19. Respondent was not afforded an evidentiary hearing on the denial of the waiver or given a statement of reasons for it. 4 In January 1972, respondent commenced a proceeding in the New York state courts attacking the decision of the Board of Regents not to grant a waiver as arbitrary and capricious, and seeking an order directing the Board to license her. She did not raise any constitutional challenge to the Board's decision in this judicial proceeding. The trial court granted the requested relief, but its order was reversed by the Appellate Division. In November 1975, the New York State Court of Appeals affirmed the order of the Appellate Division holding that the Board of Regents had not abused their discretion in denying respondent's application for a waiver. Tomanio v. Board of Regents, 38 N.Y.2d 724, 381 N.Y.S.2d 37, 343 N.E.2d 755 (1975), aff'g 43 App.Div.2d 643, 349 N.Y.S.2d 806 (3d Dept. 1973). 5 Seven months later, on June 25, 1976, respondent instituted this action in Federal District Court under 42 U.S.C. § 1983. Respondent alleged that the refusal of petitioners to grant her a license to practice violated due process as guaranteed by the Fourteenth Amendment. Petitioners invoked res judicata and the statute of limitations as affirmative defenses to respondent's action. 6 The District Court rejected these defenses. First, the court found that res judicata would not bar consideration of a § 1983 claim in federal court if the constitutional claim was not actually litigated and determined in the prior state-court proceeding. Since respondent had not raised any constitutional challenge to the Board's action in state court, the trial court ruled that res judicata did not preclude the federal action. 7 The District Court also found that the § 1983 action was not barred by the statute of limitations. Respondent's claim arose in November 1971 when her application for waiver was denied, more than three years prior to the date on which the suit in federal court was commenced. Although the District Court found that a 3-year New York statute of limitations was applicable to respondent's action, the court held that it was appropriate to toll the running of that statute during the pendency of her state-court litigation. Relying on Mizell v. North Broward Hospital District, 427 F.2d 468 (CA5 1970), the judge concluded that a federal tolling rule was appropriate, reasoning that 8 "[i]n my judgment, the present overburdening of the federal courts and the increased filings of civil rights complaints are factors that mitigate in favor of encouraging the utilization of effective and feasible administrative and judicial remedies, which exist under state law, in certain situations." 9 Since respondent had diligently pursued her state-court remedy after the denial of waiver, and then diligently pursued her federal action after a final dismissal of her state-law claims in the New York State Court of Appeals the judge found that "it cannot be said that plaintiff has slept on her rights." On the merits of the federal constitutional claim, the District Court found that respondent was entitled to a hearing before the Board, relief which was more limited than she had sought. The Court of Appeals for the Second Circuit affirmed the District Court in its rejection of estoppel by judgment and the statute of limitations defense, finding that the tolling of the statute was justified "in the interests of advancing the goals of federalism." 603 F.2d 255. The court also agreed with the ruling of the District Court that respondent was entitled, as a matter of federal constitutional law, to a hearing before the Board on her eligibility for waiver of the examination requirements. 10 In unraveling this tangle of federal and state claims, and federal- and state-court judgments, we have decided that the case is best disposed of by resolving the statute of limitations question, which we believe has been all but expressly resolved against the respondent by our decisions in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Under the reasoning of these decisions, the federal courts were obligated not only to apply the analogous New York statute of limitations to respondent's federal constitutional claims, but also to apply the New York rule for tolling that statute of limitations. II 11 Congress did not establish a statute of limitations or a body of tolling rules applicable to actions brought in federal court under § 1983—a void which is commonplace in federal statutory law. When such a void occurs, this Court has repeatedly "borrowed" the state law of limitations governing an analogous cause of action.3 Limitation borrowing was adopted for civil rights actions filed in federal court as early as 1914, in O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980. Although the Court of Appeals found that respondent's action was governed by a 3-year New York statute of limitations,4 the court did not apply the New York rules governing the circumstances under which that statute of limitations could be tolled. 12 In § 1983 actions, however, a state statute of limitations and the coordinate tolling rules are more than a technical obstacle to be circumvented if possible. In most cases, they are binding rules of law. In 42 U.S.C. § 1988, Congress "quite clearly instructs [federal courts] to refer to state statutes" when federal law provides no rule of decision for actions brought under § 1983.5 Robertson v. Wegmann, supra. See also Carlson v. Green, 446 U.S. 14, at 22, n. 10, 100 S.Ct. 1468, at 1474, n. 10, 64 L.Ed.2d 15 (1980). As we held in Robertson, by its terms, § 1988 authorizes federal courts to disregard an otherwise applicable state rule of law only if the state law is "inconsistent with the Constitution and laws of the United States." 13 In another action subject to § 1988, we held that the state statute of limitations and the state tolling rules governed federal actions brought under 42 U.S.C. § 1981 except when "inconsistent with the federal policy underlying the cause of action under consideration." Johnson v. Railway Express Agency, Inc., supra, at 465, 95 S.Ct., at 1722. We there restated the general principle that since there was no specifically stated or otherwise relevant federal statute of limitations for the federal substantive claim created by Congress in that case, "the controlling period would ordinarily be the most appropriate one provided by state law." 421 U.S., at 462, 95 S.Ct., at 1721, and cases cited therein. We went on to observe that this "borrowing" logically included rules of tolling: 14 "Any period of limitation . . . is understood fully only in the context of the various circumstances that suspend it from running against a particular cause of action. Although any statute of limitations is necessarily arbitrary, the length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones. In virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, revival, and questions of application. In borrowing a state period of limitation for application to a federal cause of action, a federal court is relying on the State's wisdom in setting a limit, and exceptions thereto, on the prosecution of a closely analogous claim." Id., at 463-464, 95 S.Ct., at 1722. 15 As Robertson and Johnson make clear, therefore, resolution of this case requires us to identify the New York rule of tolling and determine whether that rule is "inconsistent" with federal law. III 16 New York has codified the limitations of actions and the circumstances under which those limitations can be tolled together. N.Y.Civ.Prac.Law §§ 201-218 (McKinney 1972 and Supp. 1979-1980). The general rule is set forth unambiguously in § 201 (McKinney 1972): "An action . . . must be commenced within the time specified in this article . . . . No court shall extend the time limited by law for the commencement of an action." The statute codifies a number of the tolling rules developed at common law.6 No section of the law provides, however, that the time for filing a cause of action is tolled during the period in which a litigant pursues a related, but independent cause of action.7 If a plaintiff wishes to pursue his claims in succession, rather than concurrently, the legislature has required the plaintiff either to obtain a judicial stay of the time for commencing an action, or to litigate at risk. See § 204. The New York Legislature has apparently determined that the policies of repose underlying the statute of limitations should not be displaced by whatever advantages inure, whether to the plaintiff or the system, in a scheme which encourages the litigation of one cause of action prior to another. 17 Respondent's failure to comply with the New York statute of limitations, therefore, precluded maintenance of this action unless New York's tolling rule is "inconsistent" with the policies underlying § 1983.8 In order to gauge consistency, of course, the state and federal policies which the respective legislatures sought to foster must be identified and compared. On many prior occasions, we have emphasized the importance of the policies underlying state statutes of limitations. Statutes of limitations are not simply technicalities. On the contrary, they have long been respected as fundamental to a well-ordered judicial system. Making out the substantive elements of a claim for relief involves a process of pleading, discovery, and trial. The process of discovery and trial which results in the finding of ultimate facts for or against the plaintiff by the judge or jury is obviously more reliable if the witness or testimony in question is relatively fresh. Thus in the judgment of most legislatures and courts, there comes a point at which the delay of a plaintiff in asserting a claim is sufficiently likely either to impair the accuracy of the fact-finding process or to upset settled expectations that a substantive claim will be barred without respect to whether it is meritorious. By the same token, most courts and legislatures have recognized that there are factual circumstances which justify an exception to these strong policies of repose. For example, defendants may not, by tactics of evasion, prevent the plaintiff from litigating the merits of a claim, even though on its face the claim is time-barred. These exceptions to the statute of limitations are generally referred to as "tolling" and, as more fully discussed in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), are an integral part of a complete limitations policy. 18 The importance of policies of repose in the federal as well as in the state, system is attested to by the fact that when Congress has provided no statute of limitations for a substantive claim which is created, this Court has nonetheless "borrowed" what it considered to be the most analogous state statute of limitations to bar tardily commenced proceedings. Supra, at 483-484. This is obviously a judicial recognition of the fact that Congress, unless it has spoken to the contrary, did not intend by the mere creation of a "cause of action" or "claim for relief" that any plaintiff filing a complaint would automatically prevail if only the necessary elements of the federal substantive claim for relief could be established. Thus, in general, state policies of repose cannot be said to be disfavored in federal law. Nonetheless, it is appropriate to determine whether Congress has departed from the general rule in § 1983. 19 In Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), the Court first emphasized that "a state statute cannot be considered 'inconsistent' with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the § 1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant." Id., at 593, 98 S.Ct., at 1997. The Court went on to identify two of the principal policies embodied in § 1983 as deterrence and compensation. Neither of these policies is significantly affected by this rule of limitations since plaintiffs can still readily enforce their claims, thereby recovering compensation and fostering deterrence, simply by commencing their actions within three years. 20 Uniformity has also been cited as a federal policy which sometimes necessitates the displacement of an otherwise applicable state rule of law. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15; Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 362, 97 S.Ct. 2447, 2452, 53 L.Ed.2d 402 (1977). The need for uniformity, while paramount under some federal statutory schemes, has not been held to warrant the displacement of state statutes of limitations for civil rights actions. Johnson v. Railway Express Agency, Inc., supra. In Robertson v. Wegmann, supra, we held: 21 "[w]hatever the value of nationwide uniformity in areas of civil rights enforcement where Congress has not spoken, in the areas to which § 1988 is applicable Congress has provided direction, indicating that state law will often provide the content of the federal remedial rule. This statutory reliance on state law obviously means that there will not be nationwide uniformity on these issues." 436 U.S., at 594, n. 11, 98 S.Ct., at 1997 n. 11. 22 The Court of Appeals and the District Court in this case apparently believed that policies of federalism would be undermined by the adoption of the New York tolling rule since litigants would not be encouraged to resort to state remedies prior to the maintenance of a federal civil rights action under § 1983. The conclusion of the lower courts that this result would be "inconsistent" with federal law is at odds with the reasoning in our prior opinions in this field as well as at odds with federalism itself. 23 On several prior occasions, we have reasoned that when Congress intended to establish a remedy separate and independent from other remedies that might also be available, a state rule which does not allow a plaintiff to litigate such alternative claims in succession, without risk of a time bar, is not "inconsistent." In Johnson v. Railway Express, supra, the Court found that a state rule which did not toll the statute of limitations applicable to a claim under 42 U.S.C. § 1981 during the pendency of a charge under Title VII of the Civil Rights Act of 1964 filed with the Equal Employment Opportunity Commission, was not inconsistent with § 1981 because Congress had "retained § 1981 as a remedy . . . separate from and independent of the . . . procedures of Title VII." 421 U.S., at 466, 95 S.Ct., at 1723. The Court premised its conclusion that Title VII and § 1981 were separate and independent on the fact that Congress had not required resort to Title VII as a prerequisite to an action under § 1981 and did not "expect that a § 1981 court action usually would be resorted to only upon a completion of Title VII procedures . . . ." 421 U.S., at 461, 95 S.Ct., at 1720. Adopting the same reasoning, we held in Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), that it would not be inconsistent with Title VII to decline to toll the statute of limitations during labor grievance or arbitration procedures because "contractual rights under a collective-bargaining agreement and the statutory right provided by Congress under Title VII 'have legally independent origins and are equally available to the aggrieved employee.' " Id., at 236, 97 S.Ct., at 447, quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 52, 94 S.Ct. 1011, 1021, 39 L.Ed.2d 147 (1974). Applying the converse of this reasoning, this Court found in Occidental Life Ins. Co. of California v. EEOC, supra, that it would be inconsistent with federal law to apply a state statute of limitations to actions instituted by the EEOC under Title VII since the EEOC was "required by law to refrain from commencing a civil action until it ha[d] discharged its administrative duties." 432 U.S., at 368, 97 S.Ct., at 2455. 24 The District Court's conclusion that state remedies should be utilized before resort to the federal courts may be an entirely sound and sensible observation, but in our opinion it does not square with what must be presumed to be congressional intent in creating an independent federal remedy. Unless that remedy is structured to require previous resort to state proceedings, so that the claim may not even be maintained in federal court unless such resort be had, see Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), it cannot be assumed that Congress wishes to hold open the independent federal remedy during any period of time necessary to pursue alternative state-court remedies. It is difficult to conclude that a state policy of repose which likewise does not encourage litigants to resort to other available remedies is inconsistent with such congressional intent. We find the congressional intent here to be virtually indistinguishable from that found in Johnson v. Railway Express, supra, and Electrical Workers v. Robbins & Myers, Inc., supra, to be consistent with a rule prohibiting tolling. 25 As in those cases, there is no question that respondent's § 1983 action was "separate and independent" from the state judicial remedy pursued in state court.9 This Court has not interpreted § 1983 to require a litigant to pursue state judicial remedies prior to commencing an action under this section. In Monroe v. Pape, 365 U.S., at 183, 81 S.Ct., at 482, we held: "[I]t is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." Thus the very independence of § 1983 reveals that the New York rule precluding tolling in the circumstances of this case is not "inconsistent" with the provisions of § 1983. 26 Finally, we do not believe that this construction of congressional intent is overridden, as the Court of Appeals found, "in the interests of advancing the goals of federalism." We believe that the application of the New York law of tolling is in fact more consistent with the policies of "federalism" invoked by the Court of Appeals than a rule which displaces the state rule in favor of an ad hoc federal rule. The result reached by the District Court and Court of Appeals might encourage more plaintiffs with both state and federal constitutional claims to initially bring an action in the state courts. But it would just as surely frustrate the often complex combination of limitations and tolling provisions enacted by the State in question. While New York might have chosen a tolling rule designed to encourage prior resort to state-law remedies, it has not. Here New York has expressed by statute its disfavor of tolling its statute of limitations for one action while an independent action is being pursued. Considerations of federalism are quite appropriate in adjudicating federal suits based on 42 U.S.C. § 1983. See, e. g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). But the Court of Appeals' rule allowing tolling can scarcely be deemed a triumph of federalism when it necessitates a rejection of the rule actually chosen by the New York Legislature. 27 Since we therefore hold that respondent's action was barred by the New York statute of limitations, we find it unnecessary to reach petitioners' other contentions. The judgment of the Court of Appeals is accordingly 28 Reversed. 29 Mr. Justice STEVENS, concurring in the result. 30 The federal claim asserted by respondent was that New York had deprived her of the right to practice her profession without the due process of law required by the Fourteenth Amendment to the United States Constitution.1 The New York proceedings that ultimately determined that she had no such right as a matter of state law were not concluded until November 1975. Since her federal action was filed only seven months later, I believe it was timely, though for somewhat different reasons than those stated by the Court of Appeals. 31 Having relied on developments in the state-court litigation to defend the merits of respondent's due process challenge,2 I would not permit the State simultaneously to contend that all aspects of the federal controversy had crystalized before respondent sought review in the state court system. Cf. Bonner v. Coughlin, 517 F.2d 1311, 1319 (CA7, 1975), modified, 545 F.2d 565 (1976) (en banc), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529. As the Court notes, ante, at 491, a litigant is not required to exhaust state remedies before bringing a § 1983 action in federal court. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492. But I would not penalize a litigant who decides to bring suit in the state courts first; for such a decision gives the State an opportunity to correct, through construction of state law, a potential constitutional error, and may obviate entirely any need to present the claim to a federal court. It would also make no sense to me in terms of either federalism or judicial administration to require a litigant who files an action in state court to proceed simultaneously in federal court in order to avoid a time bar. I therefore disagree with the Court's holding that respondent's claim is barred by limitations.3 32 On the merits, however, I am not persuaded that New York's licensing procedure is unfair. Examinations are a permissible method of determining qualifications, and lines must be drawn somewhere. The fact that respondent was just short of the passing mark does not raise any federal question. Indeed, respondent does not claim that the examination itself denied her due process. And I agree with Judge Lumbard, who dissented in the Court of Appeals, that the fact that New York has provided for a waiver in the discretion of the Board of Regents does not substantially change the State's licensing procedure. Respondent was given an adequate opportunity to advise the Board of the reasons why she should receive a waiver and she ultimately received an adequate explanation for the refusal. She does not allege that others who have failed the examination have obtained a waiver, or, indeed, any facts suggesting any arbitrariness in the New York procedure. 33 In short, I find no merit in respondent's constitutional challenge and would reverse for that reason. 34 Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting. 35 I cannot agree with the Court that respondent's federal action is time-barred. In my view, when applied to these facts the New York statute of limitations and tolling rules are "inconsistent with the Constitution and laws of the United States," and thus should not be "extended to . . . govern" respondent's suit. 42 U.S.C. § 1988. 36 While the precise content of New York's statute of limitations and tolling rules is not crucial to my analysis, I think it appropriate to note that the Court's conclusion that respondent's action would be time-barred under state law is far from persuasive. The Court relies heavily upon the absence of any provision that expressly tolls the statute of limitations "during the period in which a litigant pursues a related, but independent cause of action," ante, at 486.1 I would not attach controlling significance to the absence of particular statutory language. Nor would I conclude on the basis of that absence that New York had consciously determined "that the policies of repose underlying the statute of limitations should not be displaced by whatever advantages inure, whether to the plaintiff, or the system, in a scheme which encourages the litigation of one cause of action prior to another." Ante, at 487. Legislative silence is simply not that communicative.2 Indeed, there may be no New York rule that actually deals with the present situation. That State has a unitary court system, and in consequence its judges and legislators are unlikely to have focussed upon the filing in two different court systems of two different suits dealing with the same transaction or occurrence. Further, the situation upon which they probably have focussed—the filing in a single system of two consecutive suits—would not really be analogous because there would be no conceivable reason for separating the actions. Moreover, even in that case it is not clear that state lawmakers would expect to derail the second action by applying the statute of limitations. On the contrary, the doctrine of res judicata would seem a more probable reason for dismissal.3 In sum, I think the precise content of state law when applied to a case such as the present one is sufficiently opaque to render any supposition as to what state policies are at stake extremely speculative.4 37 More broadly, I would not find respondent's § 1983 action time-barred even were I confident that application of the New York rules would produce that result. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), settled that the plaintiff in a § 1983 case need not resort to state judicial remedies prior to filing a federal suit. There are, however, circumstances in which this Court has decided that a federal determination may be delayed pending resolution of certain state-law issues, see Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Beyond that, even in cases not technically within the abstention doctrine, advantages may be realized from permitting the state courts to decide claims that state administrative determinations were arbitrary, capricious, or otherwise contrary to state law. Accordingly, I can conceive of situations in which a plaintiff in a case like the present one might resort initially to state courts either under the view that he would be required to do so by the abstention doctrine or because doing so, while not compulsory, would be a more efficacious way of resolving his claim. Either reason strikes me as entirely legitimate.5 Abstention decisions are presumably there to be read by plaintiffs as well as district courts, and permitting plaintiffs to act upon them might spare the federal courts some unnecessary work. More generally, where the plaintiff voluntarily concludes that it is worth the time and money, resort to state judicial review under state law would not be inconsistent with Monroe v. Pape, supra, and could both reduce strains on federal-state relations and ease the task facing the district courts that must eventually resolve those cases not settled in state proceedings. 38 While I believe the foregoing benefits may be substantial, I think it vital to ensure that they are not obtained at the expense of the plaintiff's right ultimately to try his federal claims in a federal forum. Thus, while I recognize that a plaintiff may be bound by a deliberate choice to present both state and federal claims to the state court, I would not be too quick to find that such a choice has been made. In the present case, there is no indication that respondent had any intention of relinquishing her right to a federal forum, and I would eschew any course that in effect forces her to do so. In consequence, on these facts I would think it inconsistent with federal law and the Constitution to enforce state timing or res judicata rules that close the door of the federal courthouse. 39 In the abstention context, England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), sets forth a procedure for preserving a plaintiff's right to a federal forum for his federal claims while giving effect to the concerns and policies underlying Railroad Comm'n v. Pullman Co., supra. Under that procedure, a plaintiff remitted to state court may file a formal reservation in that court preserving his federal claims. If he does so, he can litigate those claims on his return to federal court. If he fails to do so, he risks being held to have submitted all his claims to the state court. It seems to me that the present case is in many respects simply a variation of the basic England situation. Accordingly, I believe that a similar reservation procedure would be appropriate here. Permitting a plaintiff to reserve his federal claims would make the choice to litigate state claims in state court a palatable one; and where that choice is exercised the parties and system alike may benefit. Further, requiring that plaintiffs who want to make such a reservation do so expressly would supply a relatively simple means of preventing the relitigation of claims submitted to and decided by state courts.6 40 While I would impose a reservation requirement on cases like this for the future, I would not be inclined to do so on the present facts for reasons akin to those that led us to make England itself prospective. 375 U.S., at 421-423, 84 S.Ct., at 467-68. Specifically, there is no reason why respondent should have anticipated that she would be required to reserve her federal questions. On the contrary, I think she could reasonably have assumed that so long as her federal claims were not raised or decided in state court she could try them in a subsequent § 1983 action.7 I would give effect to that assumption and make the reservation requirement wholly prospective.8 41 Because I think the importation of either the state statute of limitations or its estoppel by judgment rule would be inconsistent with federal law and the Constitution, I would reach the merits. The courts below were of the view that the licensing scheme in general and the waiver provisions in particular conferred on respondent some minimal property right. I see no reason to second-guess that determination.9 As a result, it is axiomatic that some procedural protections are required by the Due Process Clause. The extent of those protections is a difficult question, and I think the Court of Appeals may have gone too far when it ordered an adjudicative hearing. It does, however, seem quite clear that at minimum respondent was entitled to a statement of the reasons for her rejection. Further, I cannot agree with Mr. Justice STEVENS that this requirement was satisfied by the statement given by the Board in its answer to respondent's original complaint. Respondent's right was to receive a statement of reasons when a waiver was denied, not upon her resort to state judicial remedies.10 As a result, I would affirm the Court of Appeals insofar as it held that respondent was entitled as a matter of federal constitutional law to some additional procedures, but would reverse insofar as that court held that she was entitled to a full adjudicative hearing. Accordingly, I dissent. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 This waiver section is available to all applicants for professional licenses and not just those seeking admission to the practice of chiropractic. 2 In 1972, respondent also took, and failed, the examinations administered to applicants without prior experience in practice. 3 See, e. g., the authorities cited in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). 4 The Court of Appeals for the Second Circuit established a number of years ago that New York's three-year time limitation for actions "to recover upon a liability, penalty or forfeiture created or imposed by statute," N.Y.Civ.Prac.Law § 214(2) (McKinney Supp. 1979-1980), governs § 1983 actions brought in Federal District Court in New York. Romer v. Leary, 425 F.2d 186 (1970); Meyer v. Frank, 550 F.2d 726, cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977). While petitioners suggest that § 217 (McKinney 1972) of the New York statutes of limitations, requiring the commencement of proceedings to review administrative action within four months, more appropriately governs this action, we need only hold that the Court of Appeals erred by tolling the 3-year limitation. The respondent does not maintain that a limitation period longer than three years governs this action. Thus we may assume for the purposes of this opinion that the 3-year period was applicable since respondent is in any event barred. 5 Section 1988 provides: "The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this [chapter and Title 18], for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty." 6 See, e. g., § 207 (McKinney 1972) (tolling during defendant's absence from State or residence under false name); § 208 (McKinney Supp. 1979-1980) (tolling during period in which plaintiff is under a disability such as infancy, insanity, or imprisonment). 7 Section 204(b) does provide that if a plaintiff attempts to submit a claim for arbitration, but it is ultimately held that there is no obligation to arbitrate, the limitations period will not run during the time between the date of demand and the date of the judgment providing that arbitration is unavailable. This section does not provide for general tolling during arbitration, but only in situations where the plaintiff is unable to obtain an adjudication on the merits because the remedy is legally unavailable. 8 We note that respondent does not maintain that any provision of New York law operated to toll the statute of limitations. 9 The remedy pursued by plaintiff in state court was a state judicial remedy authorizing actions against administrative bodies to review "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion . . . ." N.Y.Civ.Prac.Law § 7803 (McKinney 1963). While the parties and the courts below were in agreement that a constitutional challenge to the agency action would have been brought under Art. 78, only the state-law claims were pursued by respondent in that proceeding. 1 "[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . ." U.S.Const., Amdt. 14, § 1. 2 Petitioners rely on the papers in the New York action as having provided respondent with an adequate statement of the reasons for the denial of a waiver. See Brief for Petitioners 4. 3 Even if I agreed with the view that the federal claim was complete in November 1971 when respondent's application for a waiver was denied, I would remand to the Court of Appeals to determine the state-law tolling issue rather than have this Court decide that state-law question in the first instance. 1 The Court also makes reference to respondent's failure to "maintain that any provision of New York law operated to toll the statute of limitations." Ante, at 487, n. 8. 2 Cf. Powell, The Still Small Voice of the Commerce Clause, in 3 Selected Essays on Constitutional Law 931, 932 (1938). 3 See Winters v. Lavine, 574 F.2d 46, 56 (CA2 1978) (citing New York cases). 4 If the Court is persuaded that state law should govern, I agree with Mr. Justice STEVENS that it would be appropriate to seek the advice of the Court of Appeals as to the precise content of the state rule as applied to facts such as these. Ante, at 493, n. 3. 5 In this regard, too, I am in agreement with my Brother STEVENS. See ante, at 493. 6 Curiously, the Court's decision regarding the New York statute of limitations could have a broadly parallel effect. As I understand it, the Court would simply require plaintiffs either to lodge a federal complaint in federal court before the limitations period expires or to obtain an order from the state court tolling the running of that period. Either step would put the State on notice that a federal constitutional challenge loomed, cf. Government Employees v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957), and, assuming that the Court would not give effect to the state res judicata rules, either would ultimately permit plaintiffs in future cases to raise their federal claims in federal forums. Thus, while I am not persuaded by the Court's reasoning, and while I think the result in this particular case anomalous, the overall effect of the Court's rule may be satisfactory. 7 In 1970 the Court of Appeals for the Fifth Circuit concluded that a state statute of limitations would be tolled in such a situation. Mizell v. North Broward Hospital District, 427 F.2d 468, 473-474. The Court of Appeals for the Second Circuit apparently had not ruled on this precise issue at the time of respondent's suit, although it had held that New York's res judicata and collateral estoppel rules would not bar a federal civil rights suit dealing with issues not actually litigated in a prior state-court suit, Ornstein v. Regan, 574 F.2d 115 (1978); Lombard v. Board of Education, 502 F.2d 631, 635-637 (1974). 8 Even were the England requirement fully applicable, respondent's failure to make an express reservation might not be dispositive on these facts. Normally the reservation rule will serve two functions—it will force the plaintiff to declare his intentions, and thus keep him from getting two chances to litigate a single claim, and it will put the parties and the state court on notice that there lurks a constitutional issue. Here the first purpose is not implicated because respondent's federal claims were not litigated in state court. And while it may be appropriate to hold that a plaintiff who fails to reserve federal claims will be bound by a state court's actual determination of those claims, the proper result where a failure to reserve has led only to silence on the federal issue is less obvious. Government Employees v. Windsor, supra, for example, merely concluded that a state-law determination made without warning or discussion of related constitutional claims was inadequate and ordered a remand to give the state courts an opportunity to construe their statute in a different manner. 353 U.S., at 366, 77 S.Ct., at 839. Neither party has requested such a disposition here, and I am not convinced that one would be appropriate. But it does seem that the consequence of failure to reserve in the present context need not be a complete bar to pursuit of respondent's federal claims in federal court. 9 In the wake of Bishop v. Wood, 426 U.S. 341, 347, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976), it is clear that such second-guessing will rarely if ever be appropriate. 10 Cf. Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510 (1913).

89

446 U.S. 458 100 S.Ct. 1779 64 L.Ed.2d 425 NAVARRO SAVINGS ASSOCIATION, Petitioner,v.Lawrence F. LEE, Jr., et al. No. 79-465. Argued March 18, 1980. Decided May 19, 1980. Syllabus* Held : Respondents, as individual trustees of a business trust organized under Massachusetts law, may invoke the diversity jurisdiction of the federal courts on the basis of their own citizenship without regard to the citizenship of the trust beneficiaries. A federal court must rest jurisdiction only upon the citizenship of real parties to the controversy, and a trustee is a real party to the controversy for purposes of diversity jurisdiction when (as do respondents here) he possesses certain customary powers to hold, manage, and dispose of assets for the benefit of others. Cf. Bullard v. Cisco, 290 U.S. 179, 54 S.Ct. 177, 78 L.Ed. 254. Respondents are active trustees whose control over the assets held in their names is real and substantial. That the trust may depart from conventional forms in other respects has no bearing upon this determination. Nor does the trust's resemblance to a business enterprise alter the distinctive rights and duties of the trustees. Pp. 460-466. 5 Cir., 597 F.2d 421, affirmed. Bernus Wm. Fischman, Houston, Tex., for petitioner. James A. Ellis, Jr., Dallas, Tex., for respondents. Mr. Justice POWELL delivered the opinion of the Court. 1 The question is whether the trustees of a business trust may invoke the diversity jurisdiction of the federal courts on the basis of their own citizenship, rather than that of the trust's beneficial shareholders. 2 * The respondents are eight individual trustees of Fidelity Mortgage Investors, a business trust organized under Massachusetts law.1 They hold title to real estate investments in trust for the benefit of Fidelity's shareholders.2 The declaration of trust gives the respondents exclusive authority over this property "free from any power and control of the Shareholders, to the same extent as if the Trustees were the sole owners of the Trust Estate in their own right. . . . "3 The respondents have power to transact Fidelity's business, execute documents, and "sue and be sued in the name of the Trust or in their names as Trustees of the Trust."4 They may invest the funds of the trust, lend money, and initiate or compromise lawsuits relating to the trust's affairs.5 3 In 1971, respondents lent $850,000 to a Texas firm in return for a promissory note payable to themselves as trustees. The note was secured in part by a commitment letter in which petitioner Navarro Savings Association agreed to lend the Texas firm $850,000 to cover its obligation to the respondents. In 1973, respondents called upon Navarro to make the "takeout" loan. Navarro refused, and this action followed. The amended complaint, filed in the United States District Court for the Northern District of Texas, sought approximately $175,000 in damages for breach of contract. Federal jurisdiction was premised upon diversity of citizenship. 28 U.S.C. § 1332.6 The complaint asserted—and the parties agree—that Navarro was a Texas citizen and that each respondent was a citizen of another State. The parties have stipulated, however, that some of Fidelity's beneficial shareholders were Texas residents. 4 The District Court dismissed the action for want of subject-matter jurisdiction. 416 F.Supp. 1186 (1976). Concluding that a business trust is a citizen of every State in which its shareholders reside, the court held that the parties lacked the complete diversity required by Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806). The Court of Appeals for the Fifth Circuit reversed. 597 F.2d 421 (1979). It held that the respondent trustees were real parties in interest because they had full power to manage and control the trust and to sue on its behalf. Since complete diversity existed among the actual parties to the controversy, the Court of Appeals directed the District Court to proceed to trial on the merits. We granted certiorari, 444 U.S. 962, 100 S.Ct. 447, 62 L.Ed.2d 374 (1979), and we now affirm. II 5 Federal courts have jurisdiction over controversies between "Citizens of different States" by virtue of 28 U.S.C. § 1332(a)(1) and U.S.Const., Art. III, § 2. Early in its history, this Court established that the "citizens" upon whose diversity a plaintiff grounds jurisdiction must be real and substantial parties to the controversy. McNutt v. Bland, 2 How. 9, 15, 11 L.Ed. 159 (1844); see Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 328-329, 14 L.Ed. 953 (1854); Coal Co. v. Blatchford, 11 Wall. 172, 177, 20 L.Ed. 179 (1871). Thus, a federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy. E. g., McNutt v. Bland, supra, at 14; see 6 C. Wright & A. Miller, Federal Practice and Procedure § 1556, pp. 710-711 (1971). 6 The early cases held that only persons could be real parties to the controversy. Artificial or "invisible" legal creatures were not citizens of any State. Bank of United States v. Deveaux, 5 Cranch 61, 86-87, 91, 3 L.Ed. 38 (1809).7 Although corporations suing in diversity long have been "deemed" citizens, see n. 7, supra, unincorporated associations remain mere collections of individuals. When the "persons composing such association" sue in their collective name, they are the parties whose citizenship determines the diversity jurisdiction of a federal court. Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 456, 20 S.Ct. 690, 693, 44 L.Ed. 842 (1900) (limited partnership association); see Steelworkers v. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965) (labor union); Chapman v. Barney, 129 U.S. 677, 9 S.Ct. 426, 32 L.Ed. 800 (1889) (joint stock company). 7 Navarro contends that Fidelity's trust form masks an unincorporated association of individuals who make joint real estate investments. Navarro observes that certain features of the trust's operations also characterize the operations of an association: centralized management, continuity of enterprise, and unlimited duration. Arguing that this trust is in substance an association, Navarro reasons that the real parties to the lawsuit are Fidelity's beneficial shareholders. III 8 We need not reject the argument that Fidelity shares some attributes of an association. In certain respects, a business trust also resembles a corporation. But this case involves neither an association nor a corporation. Fidelity is an express trust, and the question is whether its trustees are real parties to this controversy for purposes of a federal court's diversity jurisdiction.8 9 As early as 1808, this Court stated that trustees of an express trust are entitled to bring diversity actions in their own names and upon the basis of their own citizenship. Chappedelaine v. Dechenaux, 4 Cranch 306, 308, 2 L.Ed. 629. Federal Rule of Civil Procedure 17(a) now provides that such trustees are real parties in interest for procedural purposes.9 Yet similar principles governed diversity jurisdiction long before the advent of uniform rules of procedure.10 In 1870, the Court declared that jurisdiction properly founded upon the diverse citizenship of individual trustees "is not defeated by the fact that the parties whom they represent may be disqualified." Coal Co. v. Blatchford, 11 Wall., at 175 (mortgage contract). "[T]he residence of those who may have the equitable interest" is simply irrelevant. Bonnafee v. Williams, 3 How. 574, 577, 11 L.Ed. 732 (1845) (note held in trust for third party). The same rule applies when "the beneficiaries are many." Dodge v. Tulleys, 144 U.S. 451, 456, 12 S.Ct. 728, 36 L.Ed. 501 (1892) (dictum) (railroad trust deed).11 10 In Bullard v. Cisco, 290 U.S. 179, 189, 54 S.Ct. 177, 180, 78 L.Ed. 254 (1933), the trust beneficiaries were "numerous and widely scattered" investors who had conveyed certain bonds to a committee formed by a protective agreement. The agreement did not use trust terminology. Nevertheless, the Court held that the "rights, powers and duties expressly assigned" to committee members "necessarily" made them trustees. Ibid. The agreement gave the committeemen "full title to the deposited bonds," and it defined "the control and power of disposal which the trustees were to have over them." Ibid. Refusing to analogize the committee to a collection agency, the Court concluded that "[t]he beneficiaries were not necessary parties and their citizenship was immaterial." Id., at 190, 54 S.Ct., at 181.12 11 Bullard reaffirms that a trustee is a real party to the controversy for purposes of diversity jurisdiction when he possesses certain customary powers to hold, manage, and dispose of assets for the benefit of others.13 The trustees in this case have such powers. At all relevant times, Fidelity operated under a declaration of trust that authorized the trustees to take legal title to trust assets, to invest those assets for the benefit of the shareholders, and to sue and be sued in their capacity as trustees. Respondents filed this lawsuit in that capacity. They seek damages for breach of an obligation running to the holder of a promissory note held in their own names. Fidelity's 9,500 beneficial shareholders had no voice in the initial investment decision. They can neither control the disposition of this action nor intervene in the affairs of the trust except in the most extraordinary situations.14 12 We conclude that these respondents are active trustees whose control over the assets held in their names is real and substantial. That the trust may depart from conventional forms in other respects has no bearing upon this determination. Nor does Fidelity's resemblance to a business enterprise alter the distinctive rights and duties of the trustees.15 There is no allegation of sham or collusion. See 28 U.S.C. § 1359; Bullard v. Cisco, supra, 290 U.S., at 187-188, 54 S.Ct., at 180 and n. 5. The respondents are not "naked trustees" who act as "mere conduits" for a remedy flowing to others. McNutt v. Bland, 2 How., at 13-14; see Browne v. Strode, 5 Cranch 303, 3 L.Ed. 108 (1809). They have legal title; they manage the assets; they control the litigation. In short, they are real parties to the controversy. For more than 150 years, the law has permitted trustees who meet this standard to sue in their own right, without regard to the citizenship of the trust beneficiaries. We find no reason to forsake that principle today. The judgment of the Court of Appeals is 13 Affirmed. 14 Mr. Justice BLACKMUN, dissenting. 15 A reader of the Court's conclusory opinion might wonder why this heavily burdened tribunal chose to review this case. Most assuredly, we did not do so merely to reaffirm, ante, at 462, Mr. Chief Justice Marshall's ruling from the bench in Chappedelaine v. Dechenaux, 4 Cranch 306, 308, 2 L.Ed. 629 (1808), to the effect that aliens serving respectively as residuary legatee and representative of an estate, "although they sue as trustees," were entitled to bring a federal diversity action against a Georgia citizen. Rather, I had thought that we granted certiorari to resolve a significant conflict among the Courts of Appeals concerning the question whether the citizenship of a business trust, for purposes of establishing diversity jurisdiction, is determined by looking to the citizenship of its trustees or that of its beneficial shareholders.1 I believe that the analysis applied by the Courts of Appeals in resolving that question was correct, but in applying that same analysis I would reach a different result. I feel that neither the approach now used by this Court, nor the result it reaches, comports with the Massachusetts law of business trusts, or with the Court's precedents concerning diversity jurisdiction. 16 * The Court recognizes that Fidelity Mortgage Investors, a Massachusetts business trust "shares some attributes of an association," and that it "also resembles a corporation." Ante, at 462. The Court concludes, however, based on its reading of portions of Fidelity's Declaration of Trust, that it is an "express trust." Taken either as a proposition of the general common-law of trusts,2 or as an interpretation of the Massachusetts law of business trusts, that conclusion is not nearly so automatic and evident as the Court's scant reasoning implies. 17 In Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949 (1924), this Court described the Massachusetts business trust in terms that have come to be accepted as the classic definition, see 16A R. Eickhoff, Fletcher Cyclopedia of the Law of Private Corporations § 8228 (1979): 18 "The 'Massachusetts Trust' is a form of business organization, common in that State, consisting essentially of an arrangement whereby property is conveyed to trustees, in accordance with the terms of an instrument of trust, to be held and managed for the benefit of such persons as may from time to time be the holders of transferable certificates issued by the trustees showing the shares into which the beneficial interest in the property is divided. These certificates, which resemble certificates for shares of stock in a corporation and are issued and transferred in like manner, entitle the holders to share ratably in the income of the property, and, upon termination of the trust, in the proceeds. 19 "Under the Massachusetts decisions these trust instruments are held to create either pure trusts or partnerships, according to the way in which the trustees are to conduct the affairs committed to their charge. If they are the principals and are free from the control of the certificate holders in the management of the property, a trust is created; but if the certificate holders are associated together in the control of the property as principals and the trustees are merely their managing agents, a partnership relation between the certificate holders is created. Williams v. Milton, 215 Mass. 1, 5 [102 N.E. 355]; Frost v. Thompson, 219 Mass. 360, 365 [106 N.E. 1009]; Dana v. Treasurer, 227 Mass. 562, 565 [116 N.E. 941]; Priestley v. Treasurer, 230 Mass. 452, 455 [120 N.E. 100]. 20 "These trusts—whether pure trusts or partnerships—are unincorporated. They are not organized under any statute; and they derive no power, benefit or privilege from any statute. The Massachusetts statutes, however, recognize their existence and impose upon them, as 'associations,' certain obligations and liabilities." (Footnotes omitted.)3 265 U.S., at 146-147, 44 S.Ct., at 463. 21 Based on its reading of Fidelity's Fifth Amended and Restated Declaration of Trust, App. A40, and seemingly unconcerned with considerations of state law, the Court determines that respondents "are active trustees whose control over the assets held in their names is real and substantial." Ante, at 465. That the trustees' control over the assets of Fidelity is substantial may be accepted without quarrel. The Court fails to recognize, however, that the Declaration of Trust lodges in the beneficial shareholders substantial control over the actions of these trustees. Article 2.1 of the Declaration provides that the trustees are to be elected at annual shareholder meetings by a majority of the shares voted. App. A47. Article 2.2 provides that trustees may be removed from office, with or without cause, by vote of the majority of the outstanding shares. Ibid. Article 6.7 vests in the shareholders two significant powers: the ability to call a special meeting upon the request of not less than 20% of the outstanding shares, and the requirement that any sale, lease, exchange, or other disposition of more than 50% of the trust assets is to be made only upon the affirmative approval of the holders of a majority of the shares. Id., at A67. Most significantly, Art. 8.2 reserves to the holders of a majority of the shares the right to terminate the trust at any shareholder meeting, and Art. 8.3 gives them the power to amend the Declaration of Trust itself. Id., at A79-A80. 22 The leading Massachusetts decision concerning the legal nature of a business trust is Williams v. Inhabitants of Milton, 215 Mass. 1, 102 N.E. 355 (1913). There the court inquired whether personal property held by the trustees of the Boston Personal Property Trust was to be taxed as partnership property or investment trust property. In concluding that the indenture of trust created a true trust, the court observed that the shareholders of the trust were not associated in any way, did not hold meetings, and could not force the trustees to amend or terminate the trust. Id., at 10, 102 N.E., at 358. The court emphasized, however, that the parties' intent to create a trust, rather than a partnership, as evidenced in the declaration of trust, was not controlling. "It is what the parties did in making the trust indenture that is decisive." Id., at 12, 102 N.E., at 359. 23 In Frost v. Thompson, 219 Mass. 360, 365, 106 N.E. 1009, 1010 (1914), the court distilled from Williams the following test: 24 "A declaration of trust or other instrument providing for the holding of property by trustees for the benefit of the owners of assignable certificates representing the beneficial interest in the property may create a trust or it may create a partnership. Whether it is the one or the other depends upon the way in which the trustees are to conduct the affairs committed to their charge. If they act as principals and are free from the control of the certificate holders, a trust is created; but if they are subject to the control of the certificate holders, it is a partnership." 25 Guided by these principles, the Frost court concluded that the "Buena Vista Fruit Company" was a partnership rather than a trust. This conclusion followed from the fact that shareholders representing two-thirds of the outstanding shares had the power to remove any or all of the trustees at any time without cause, to appoint others to fill resulting vacancies, and to terminate the trust. Moreover, shareholders representing a majority of the shares had the power to amend the declaration of trust and bylaws. "These provisions demonstrate that this association is a partnership and not a trust." Id., at 366, 106 N.E., at 1010. Thus, the court concluded that the trustees could not be sued in an action on a note issued by the Buena Vista Fruit Company. 26 In a variety of contexts, the Supreme Judicial Court of Massachusetts has continued to observe the line, drawn in Williams and in Frost, that is based on the relative powers of shareholders and trustees in a business trust.4 It appears to me that the powers lodged in the beneficial shareholders of Fidelity—the powers to elect and remove trustees, to vote on major trust investments, to amend the terms of the trust, and to terminate it—clearly dictate that it falls on the partnership side of the line. And those same powers convert the relationship between Fidelity's trustees and shareholders from one of trusteeship to one of agency. Thus, in Williams, the court stated: "The person in whose name the partnership property stands in such a case is perhaps in a sense a trustee. But speaking with accuracy he is an agent who for the principal's convenience holds the legal title to the principal's property." 215 Mass., at 6, 102 N.E., at 356. See also Howe v. Chmielinski, 237 Mass. 532, 534, 130 N.E. 56, 56 (1921). 27 I do not suggest that this state-law analysis is fully dispositive of the federal jurisdictional question presented here, see n. 7, infra, but it certainly is relevant.5 Moreover, I believe that it casts very substantial doubt on the Court's major premise, namely, that Fidelity is an "express trust." II 28 Petitioner argues that this case is controlled by the confluence of principles emanating from two of this Court's past decisions, each of which the Court, in its present opinion, essentially relegates to a footnote. The first case, Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 262 (1935), like Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949 (1924), dealt with the tax treatment of a business trust. In holding that such an entity was not an "ordinary trust," the Court observed: 29 "In what are called 'business trusts' the object is not to hold and conserve particular property, with incidental powers, as in the traditional type of trusts, but to provide a medium for the conduct of a business and sharing its gains. Thus, a trust may be created as a convenient method by which persons become associated for dealings in real estate, the development of tracts of land, the construction of improvements, and the purchase, management and sale of properties; or for dealings in securities or other personal property; or for the production, or manufacture, and sale of commodities; or for commerce, or other sorts of business; where those who become beneficially interested, either by joining in the plan at the outset, or by later participation according to the terms of the arrangement, seek to share the advantages of a union of their interests in the common enterprise." 296 U.S., at 357, 56 S.Ct., at 295. 30 These distinctions, along with the similarities between a business trust and a corporation, led the Court to conclude that a business trust was an "association," taxable, along with corporations, joint stock companies, and insurance companies, under § 2(a)(2) of the respective Revenue Acts of 1924 and 1926, ch. 234, 43 Stat. 253, and ch. 27, 44 Stat. 9. 31 Concluding that Morrissey establishes that Fidelity is an unincorporated association, petitioner argues that it follows that this controversy is then controlled by the second case, Steelworkers v. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965). In Bouligny, a unanimous Court held that an unincorporated labor union's citizenship for diversity purposes could not be determined without regard to the citizenship of its members. Although the holding of Bouligny was limited to the diversity treatment of labor unions, the principles it enunciates are unmistakably broad. The Court rejected the invitation of other courts and commentators to eradicate the distinction between the "citizenship" of corporations, on the one hand, and that of labor unions and other unincorporated associations, on the other hand. See id., at 149-150, 86 S.Ct., at 274. The Court stated that it was "of the view that these arguments, however appealing, are addressed to an inappropriate forum, and that pleas for extension of the diversity jurisdiction to hitherto uncovered broad categories of litigants ought to be made to the Congress and not to the courts." Id., at 150-151, 86 S.Ct., at 274-275. 32 The Court of Appeals in this case recognized the pertinence of Bouligny to the problem presented here, but found that case distinguishable. It noted that Bouligny is directly applicable only to the situation in which an unincorporated association seeks to establish diversity jurisdiction as an entity. And it adopted the view, earlier suggested in law review commentary,6 that Bouligny did not decide who the relevant members are when a court determines the citizenship of an unincorporated association. The Court of Appeals concluded that when an organization has more than one class of members, it is necessary to determine on a case-by-case basis which class comprises the real parties in interest. Focusing its attention on Fidelity's Declaration of Trust, the court held that the trustees were the real parties to this lawsuit because they were designated as having exclusive control of the trust's activities, with the capacity to sue on the trust's behalf and to be sued. See 597 F.2d 421, 427 (CA5 1979). 33 I believe that the approach of the Court of Appeals in this case was consistent with this Court's prior decisions. And I much prefer it to the simplistic approach the Court now adopts. I am particularly troubled by the Court's intimation that business trusts are to be treated differently from other functionally analogous business associations—partnerships, limited partnerships, joint stock companies, and the like. I fear that, at bottom, the Court's distinction between business trusts and these other enterprises hinges on the locus of title to the trust assets, see ante, at 459, and 464-466, a formalistic criterion having little to do with a realistic assessment of the respective degrees of control over the trust's activities that may be exercised by shareholders and trustees. 34 While I prefer and accept the Court of Appeals' approach to this case, I am persuaded, on that approach, that one cannot ignore the pervasive measure of control that Fidelity's shareholders possess over the trustees' actions taken in their behalf. See Part I, supra.7 That factor, in my view, is the principal distinction between the on going business entity at issue here and the trust relationship among certificate holders and the bondholders' committee that was at issue in Bullard v. Cisco, 290 U.S. 179, 54 S.Ct. 177, 78 L.Ed. 254 (1933), cited and relied upon by the Court, ante, at 463-464. Though the question is not free from all doubt, in the light of these circumstances I believe that the citizenship of Fidelity should be determined according to the citizenship of its beneficial shareholders, and that diversity jurisdiction does not exist in this case.8 I therefore dissent from the Court's holding to the contrary. 35 I would vacate the judgment of the Court of Appeals and remand this case for consideration of respondents' claimed alternative bases for federal jurisdiction that were rejected by the District Court, but not reached by the Court of Appeals. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 Fidelity merged into a Delaware corporation in 1978, but Federal Rule of Civil Procedure 25(c) permits the original parties to continue the litigation. Jurisdiction turns on the facts existing at the time the suit commenced. Louisville, N. A. & C. R. Co. v. Louisville Trust Co., 174 U.S. 552, 556, 19 S.Ct. 817, 818, 43 L.Ed. 1081 (1899). 2 Fidelity Mortgage Investors Fifth Amended and Restated Declaration of Trust (hereinafter Fidelity Declaration of Trust), App. A44-A45. 3 Id., Art. 3.1, App. A49-A50. 4 Id., Art. 1.1, App. A45. 5 Id., Art. 3.2, App. A50-A55. 6 Section 1332(a)(1) provides: "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between . . . citizens of different States . . . ." In view of our disposition of the case, we need not consider respondents' alternative claim to jurisdiction under 28 U.S.C. § 1331 or their attempt to bring a class action under Federal Rule of Civil Procedure 23.2. 7 Although overruled in Louisville, C., & C. R. Co. v. Letson, 2 How. 497, 11 L.Ed. 353 (1844), Deveaux was resurrected by Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 14 L.Ed. 953 (1854). Marshall held that an artificial entity cannot be a citizen, but that the persons who "act under [corporate] faculties . . . and use [the] corporate name" are presumed to reside in the State of incorporation. Id., at 328; see St. Louis & S. F. R. Co. v. James, 161 U.S. 545, 562, 16 S.Ct. 621, 627, 40 L.Ed. 802 (1896). This view endured until 1958, when Congress amended the diversity statute to provide explicitly that "a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." Act of July 25, 1958, § 2, 72 Stat. 415 (codified at 28 U.S.C. § 1332(c)). 8 The dissenting opinion, post, at 471-472, and n. 4, 476, n. 7, asserts that Massachusetts law would treat Fidelity as a trust for some purposes and as a partnership for others. Neither the parties nor the courts below addressed these questions of state law. Assuming that the dissent is correct, its observations cast no doubt on our conclusion that Fidelity is a form of express trust. It is black letter law that "[m]any of the rules applicable to trusts are applied to business trusts. . . . " Restatement (Second) of Trusts § 1, Comment b, p. 4 (1959). Many others are not. Our task is simply to determine, as a matter of federal law, whether the rules applicable to trustees who sue in diversity fall in the former or the latter category. 9 There is a "rough symmetry" between the "real party in interest" standard of Rule 17(a) and the rule that diversity jurisdiction depends upon the citizenship of real parties to the controversy. But the two rules serve different purposes and need not produce identical outcomes in all cases. Note, Diversity Jurisdiction over Unincorporated Business Entities: The Real Party in Interest as a Jurisdictional Rule, 56 Texas L.Rev. 243, 247-250 (1978); see 6 C. Wright & A. Miller, Federal Practice and Procedure § 1556, pp. 710-711 (1971). In appropriate circumstances, for example, a labor union may file suit in its own name as a real party in interest under Rule 17(a). To establish diversity, however, the union must rely upon the citizenship of each of its members. Steelworkers v. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965). 10 The Court never has analogized express trusts to business entities for purposes of diversity jurisdiction. Even when the Court espoused the view that a corporation lacked citizenship, Bank of United States v. Deveaux, 5 Cranch, at 91, Mr. Chief Justice Marshall explained that the doctrine had no bearing on the status of trustees. "When [persons suing by a corporate name] are said to be substantially the parties to the controversy, the court does not mean to liken it to the case of a trustee. A trustee is a real person capable of being a citizen . . . , who has the whole legal estate in himself. At law, he is the real proprietor, and he represents himself, and sues in his own right." 11 Thomas v. Board of Trustees, 195 U.S. 207, 25 S.Ct. 24, 49 L.Ed. 160 (1904), cited by Navarro, is not to the contrary. The Court there considered the Board of Trustees of a state university. Rejecting the contention that the Board was analogous to a corporation, the Court held that jurisdiction depended upon the citizenship of the individual trustees. Id., at 215-217, 25 S.Ct., at 27-28. The Court did not discuss the nature of the "trust" or the possible existence of beneficiaries. 12 The actual issue in Bullard was not citizenship but amount in controversy. The claims of certain individual bondholders were too small to satisfy the $3,000 jurisdictional threshold then in effect. The trustees, on the other hand, held legal title to unpaid bonds and coupons worth about $350,000. 290 U.S., at 180-181, 54 S.Ct., at 177. 13 The relative simplicity of this established principle, see post, at 475, is one of its virtues. "It is of first importance to have a definition . . . [that] will not invite extensive threshold litigation over jurisdiction," although the resulting "differentiations of treatment . . . appear somewhat arbitrary." American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts 128 (1969). "Jurisdiction should be as self-regulated as breathing; . . . litigation over whether the case is in the right court is essentially a waste of time and resources." Currie, The Federal Courts and the American Law Institute, Part I, 36 U.Chi.L.Rev. 1 (1968). The analysis proposed by the dissent, post, at 475-476, see post, at 476-472, and n. 4, could present serious difficulties for district courts called upon to determine questions of diversity jurisdiction. 14 The shareholders may elect and remove trustees; they may terminate the trust or amend the Declaration; and they must approve any disposition of more than half of the trust estate. Fidelity Declaration of Trust, Arts. 2.2, 6.7, 8.2, 8.3, App. A47, A67, A79-A80. No other shareholder action can bind the trustees. Id., Arts. 3.1, 6.2, App. A49, A64. The dissent believes that these limited powers of intervention establish a "pervasive measure of [shareholder] control . . . over the trustees' actions . . . ." Post, at 476. Therefore, the dissent would hold that Fidelity is a citizen of each State in which any of its 9,500 shareholders resides. But this form of "control" does not strip the trustees of the powers that make them real parties to the controversy for purposes of diversity jurisdiction. See supra, pp. 459, 463-465. Indeed, their authority over trust property—short of partial liquidation is expressly made "free from any power and control of the Shareholders, to the same extent as if the Trustees were the sole owners of the Trust Estate in their own right. . . . " Fidelity Declaration of Trust, Art. 3.1, App. A49-A50. 15 That business trusts may be treated as associations under the Internal Revenue Code, Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 262 (1935), is simply irrelevant. 1 Compare the decision below, 597 F.2d 421 (CA5 1979), rev'g 416 F.Supp. 1186 (ND Tex.1976), with Belle View Apartments v. Realty ReFund Trust, 602 F.2d 668 (CA4 1979), and Riverside Memorial Mausoleum, Inc. v. UMET Trust, 581 F.2d 62 (CA3 1978), aff'g 434 F.Supp. 58 (ED Pa.1977). See also cases cited in n. 6, infra, dealing with an analogous question presented in the context of limited partnerships. The Court of Appeals' decision in this case also conflicts with a substantial body of recent holdings of Federal District Courts that uniformly have looked to the citizenship of the beneficial shareholders, and not the trustees, in determining the existence of diversity in suits brought by or against common-law business trusts. See National City Bank v. Fidelco Growth Investors, 446 F.Supp. 124 (ED Pa.1978); Independence Mortgage Trust v. White, 446 F.Supp. 120 (Or.1978); Lincoln Associates v. Great American Mortgage Investors, 415 F.Supp. 351 (ND Tex.1976); Heck v. A. P. Ross Enterprises, Inc., 414 F.Supp. 971 (ND Ill.1976); Carey v. U. S. Industries, Inc., 414 F.Supp. 794 (ND Ill.1976); Chase Manhattan Mortgage & Realty Trust v. Pendley, 405 F.Supp. 593 (ND Ga.1975); Jim Walter Investors v. Empire-Madison, Inc., 401 F.Supp. 425 (ND Ga.1975); Larwin Mortgage Investors v. Riverdrive Mall, Inc., 392 F.Supp. 97 (SD Tex.1975); Fox v. Prudent Resources Trust, 382 F.Supp. 81 (ED Pa.1974). An early decision that appears to be in accord with the Court's "express trust" rationale in the present case is Simson v. Klipstein, 262 F. 823 (NJ 1920). 2 The leading reference works dealing with the subject of trusts do not include business trusts within their scope: "Although many of the rules applicable to trusts are applied to business trusts, yet many of the rules are not applied, and there are other rules which are applicable only to business trusts. The business trust is a special kind of business association and can best be dealt with in connection with other business associations." Restatement (Second) of Trusts § 1, Comment b, p. 4 (1959). See also 1 A. Scott, The Law of Trusts § 2.2 (3d ed. 1967). 3 The current statutory requirements governing voluntary associations under a written instrument or declaration of trust are contained in Mass.Gen.Laws Ann., ch. 182, §§ 1-14 (West 1958 and Supp.1980). 4 In Priestley v. Treasurer & Receiver General, 230 Mass. 452, 120 N.E. 100 (1918), a trust agreement was held to create a partnership relation among the shareholders because they were associated, had a fixed annual meeting, could call special meetings upon the request of the holders of 10% of the shares, were empowered to fill vacancies in the number of trustees, and could remove the trustees and elect others in their place. The shareholders also were given direct powers to control the trustees' management of the trust property. In Howe v. Chmielinski, 237 Mass. 532, 130 N.E. 56 (1921), a partnership was found to exist among the shareholders, and the trustees were deemed to be their managing agents, despite the fact that legal title to the property stood in the trustees' names. This result followed from the shareholders' reserved powers under the trust agreement to fill vacancies among the trustees, remove them, direct the sale of trust property, and alter or terminate the trust. And where the shareholders of an unincorporated loan company were given the power to elect the company's officers and directors, to remove them for cause, to fill vacancies, to hold annual and special meetings, and to amemd or repeal the bylaws, the court concluded that the company's bylaws "left in the shareholders the ultimate power of control of its affairs with the result that the relationship of partnership and not that of a trust was created." First National Bank of New Bedford v. Chartier, 305 Mass. 316, 321, 25 N.E.2d 733, 736 (1940). See also Ryder's Case, 341 Mass. 661, 664, 171 N.E.2d 475, 476-477 (1961). In Bouchard v. First People's Trust, 253 Mass. 351, 360, 148 N.E. 895, 899 (1925), the court found that an express trust had been created where the arrangement established by a declaration of trust "involve[d] a total want of legal power by the shareholders as to the trust." In that case the shareholders had no power to direct the management of the trust directly or indirectly, and they had no power to select the trustees or to control their conduct. The Federal District Court applied Massachusetts law in Gutelius v. Stanbon, 39 F.2d 621 (1st Cir. 1930), and followed Bouchard in holding that a declaration of trust established a pure trust rather than a partnership. Although the trust agreement provided for shareholder meetings at which the trustees were elected, and permitted them to terminate the trust at any time, the court deemed it significant that they were not given the right to remove trustees or to amend the declaration of trust. Id., at 625. One must note, however, that every one of the four powers mentioned in Gutelius, with two of them lacking in that case, are possessed by the shareholders of Fidelity Mortgage Investors. The fact that a declaration of trust effectively creates a partnership relation rather than a pure trust has not led the Massachusetts courts to treat the entity as a partnership for all purposes. See State Street Trust Co. v. Hall, 311 Mass. 299, 41 N.E.2d 30 (1942), in which it was held that the partnership nature of a real estate trust did not give minority shareholders the right to dissolve the trust at will. 5 Typically, for example, lower courts faced with the question whether a particular entity is a "corporation" within the meaning of the federal diversity statute, 28 U.S.C. § 1332(c), have turned to the pertinent provisions of the law of the State under which the entity was organized. See, e. g., Baer v. United Services Automobile Assn., 503 F.2d 393, 394-395 (CA2 1974). In contrast, the Court today evidently has found in our past cases a federal common law of trusts that enables it to ignore state law when the issue presented concerns the threshold question of jurisdiction. Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 822-823, 82 L.Ed. 1188 (1938). State law is not of dispositive assistance in resolving the precise question presented in this case because Massachusetts statutory law recognizes an unincorporated business trust as an entity that may itself be sued in an action at law for the debts and obligations incurred by its trustees. Mass.Gen.Laws Ann., ch. 182, § 6 (West 1958); State Street Trust Co. v. Hall, 311 Mass. 299, at 304, 41 N.E.2d 30, at 34. The fact that a business trust has the capacity to sue under the laws of Massachusetts, does not, of course, give it the power to bring a suit on its own behalf in federal court. Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 455, 20 S.Ct. 690, 692, 44 L.Ed. 842 (1900); see also 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3630, pp. 840-841, and nn. 10 and 11 (1975). 6 The Court of Appeals, 597 F.2d, at 427, and n. 6, placed substantial reliance upon the student Comment, Limited Partnerships and Federal Diversity Jurisdiction, 45 U.Chi.L.Rev. 384 (1978). That Comment, in turn, credited the dissenting opinion of Judge James Hunter III, in Carlsberg Resources Corp. v. Cambria Savings & Loan Assn., 554 F.2d 1254, 1262-1266 (CA3 1977), for the development of the real-party-in-interest approach in determining which members count in establishing the citizenship of an unincorporated association. 45 U.Chi.L.Rev., at 402-404. The Carlsberg Resources majority held that the citizenship of a limited partnership is determined according to the citizenship of all its partners. The Second Circuit has adopted the contrary view, that is, that the citizenship of the general partners alone is determinative. See Colonial Realty Corp. v. Bache & Co., 358 F.2d 178, cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966). I read the Court's opinion in this case as expressing no view on the diversity of citizenship issue that is presented when one of the parties is a limited partnership. 7 The conclusion that the Massachusetts law under which the business trust was created would treat Fidelity as a partnership could lead one to hold that its citizenship is determined with respect to the citizenship of all its shareholder-partners. See Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S., at 456, 20 S.Ct., at 693. Nonetheless, because Fidelity is not a partnership for all purposes, see n. 4, supra, I hesitate to give such a characterization of its legal nature controlling weight. It seems preferable to me to treat Fidelity as a form of unincorporated business association, and determine its citizenship according to the real-party-in-interest test utilized by the Court of Appeals. One factor that would seem especially pertinent in applying that test is the conclusion that Massachusetts law would treat the relationship between Fidelity's trustees and shareholders as one of agent to principal. See Part I, supra. 8 The author of the Comment cited in n. 6, supra, suggests that determining the real parties in interest in an action involving a business trust is complicated by the fact that no uniform statutory framework clearly defines the relative rights and responsibilities of the trustees and the shareholders. The author notes, however, that certain factors may be relevant to a determination that the shareholders, rather than the trustees, are the controlling parties. These include: "(1) the right to remove the trustees, (2) the right to terminate the trust, (3) the right to modify the terms of the trust, (4) the right to elect trustees, and (5) the right to direct management decisions of the trustees." 45 U.Chi.L.Rev., at 416. The first four are present in this case; in addition, Fidelity's shareholders have the power to condition major dispositions of the trust assets on their affirmative approval.

89

446 U.S. 398 100 S.Ct. 1747 64 L.Ed.2d 381 Michael M. BUSIC, Petitioner,v.UNITED STATES. Anthony LaROCCA, Jr., Petitioner, v. UNITED STATES. Nos. 78-6020, 78-6029. Argued Feb. 27, 1980. Decided May 19, 1980. Syllabus * Upon their joint trial in Federal District Court, petitioners were convicted of, inter alia, armed assault on federal officers petitioner LaRocca as the actual triggerman and petitioner Busic as an aider and abettor and thus derivatively a principal under 18 U.S.C. § 2—in violation of 18 U.S.C. § 111, which makes it unlawful to assault a federal officer and which provides for enhanced punishment when the assaulter "uses" a deadly weapon. In addition, LaRocca was convicted of using, and Busic of carrying, a firearm in the commission of the armed assault, in violation of 18 U.S.C. § 924(c), which authorizes the imposition of enhanced penalties on a defendant who "uses" (§ 924(c)(1)) or "carries" (§ 924(c)(2)) a firearm while committing a federal felony. Each petitioner's sentence included 5 years on possession of firearms and the assault charges, and 20 years for the § 924(c) violations. The Court of Appeals ultimately held that, while LaRocca's sentence could not be enhanced under both § 111 and § 924(c)(1) for "using" a firearm, he could be sentenced under either at the Government's election, but that, since the § 924(c) charge against Busic alleged not that he "used" a firearm but rather that he "carried" one, his sentence was valid. Held : Section 924(c) may not be applied to a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used. The sentence received by such a defendant may be enhanced only under the enhancement provision in the statute defining the felony he committed. Pp. 403-411. (a) This result is supported not only by Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70, but also by the legislative history of § 924(c) and the canons of statutory construction that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity, and that a more specific statute (18 U.S.C. § 111 here) will be given precedence over a more general one (§ 924(c)), even if, as here, the general provision was enacted later. To the extent that this construction may lead to irrational sentencing patterns in which some less severe crimes are punished more than other more severe crimes, it is the Congress, not this Court, that must take corrective action. Pp. 403-410. (b) This holding not only makes it clear that petitioner LaRocca may not be sentenced under § 924(c)(1) for using his gun to assault federal officers, but also applies to petitioner Busic's case. Nor can Busic's sentence be sustained by arguing that a person who carries a gun in the commission of a § 111 violation may be sentenced under § 924(c)(2) because the enhancement provision of § 111 does not apply to those who carry but do not use their weapons. The fact is that Busic is being punished for using a weapon. Through the combination of § 111 and 18 U.S.C. § 2, he was found guilty as a principal of using a firearm to assault federal agents. Pp. 410-411. 3rd Cir., 587 F.2d 577, reversed and remanded. Gerald Goldman, Washington, D. C., for Michael M. Busic. Samuel J. Reich, Pittsburgh, Pa., for LaRocca. Mark I. Levy, Washington, D. C., for United States. Mr. Justice BRENNAN delivered the opinion of the Court. 1 Title 18 U.S.C. § 924(c) authorizes the imposition of enhanced penalties on a defendant who uses or carries a firearm while committing a federal felony. The question for decision in these cases is whether that section may be applied to a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used. We hold that the sentence received by such a defendant may be enhanced only under the enhancement provision in the statute defining the felony he committed and that § 924(c) does not apply in such a case. 2 * Petitioners Anthony LaRocca, Jr., and Michael Busic were tried together on a multicount indictment charging drug, firearms, and assault offenses flowing from a narcotics conspiracy and an attempt to rob an undercover agent. The evidence showed that in May 1976 the two arranged a drug buy with an agent of the Drug Enforcement Administration who was to supply $30,000 in cash. When the agent arrived with the money, LaRocca attempted to rob him at gunpoint. The agent signalled for reinforcements, and as other officers began to close in LaRocca fired several shots at them. No one was hit and the agents succeeded in disarming and arresting LaRocca. Busic was also arrested and the officers seized a gun he was carrying in his belt but had not drawn. Additional weapons were found in the pair's automobile.1 3 A jury in the United States District Court for the Western District of Pennsylvania convicted petitioners of narcotics and possession-of-firearms counts,2 and of two counts of armed assault on federal officers in violation of 18 U.S.C. § 111—LaRocca as the actual triggerman and Busic as an aider and abettor, and thus derivatively a principal under 18 U.S.C. § 2. In addition, LaRocca was convicted of using a firearm in the commission of a federal felony in violation of 18 U.S.C. § 924(c)(1), and Busic was convicted of carrying a firearm in the commission of a federal felony in violation of 18 U.S.C. § 924(c)(2).3 Each petitioner was sentenced to a total of 30 years, of which 5 resulted from concurrent sentences on the narcotics charges, 5 were a product of concurrent terms on the firearms and assault charges, and 20 were imposed for the § 924(c) violations. 4 The defendants appealed, contending, among other things, that they could not be sentenced consecutively for assaulting a federal officer with a dangerous weapon as defined in 18 U.S.C. § 1114 and for the use of a firearm in connection with that crime as provided in § 924(c).5 In an opinion announced before Simpson v.United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), was decided, the Court of Appeals for the Third Circuit concluded that the imposition in LaRocca's case of enhanced sentences under both § 924(c) and § 111 for a single assault with a firearm violated the Double Jeopardy Clause of the Fifth Amendment because the two statutes required proof of identical elements. 587 F.2d 577, 583-584 (1978). Accordingly, LaRocca's case was remanded to the District Court for resentencing under either § 111 or § 924(c), at the Government's election. Since the § 924(c) charge against Busic alleged not that he used a firearm (§ 924(c)(1)), but rather that hecarried one (§ 924(c)(2)), the Court of Appeals held that no like infirmity invalidated his conviction and sentence. In its view, the § 111 and § 924(c) charges against him did not require proof of the same elements and hence did not merge because the former could be established merely by showing that Busic had aided and abetted LaRocca's use of a gun to assault the federal officers, while the latter required proof of the additional fact that Busic had unlawfully carried a gun. 587 F.2d, at 584. 5 Following this Court's decision in Simpson v. United States, supra, the Court of Appeals granted a petition for rehearing and vacated its double jeopardy holding with regard to LaRocca on grounds there was no reason to reach the constitutional question. 587 F.2d, at 587-589. Thereafter, it proceeded as a matter of statutory construction to arrive at a nearly identical conclusion namely, that LaRocca's sentence could not be enhanced under both § 111 and § 924(c) but that he could be sentenced under either at the Government's election. The Court of Appeals did not alter its holding with regard to Busic. We granted certiorari, 442 U.S. 916, 99 S.Ct. 2835, 61 L.Ed.2d 282 (1979), and now reverse the enhanced sentences that were imposed on both petitioners under § 924(c). II 6 We turn first to the case of petitioner LaRocca because it poses most directly the key question of legislative intent. Our starting point, like that of the parties, is Simpson, supra. There we considered the relationship between § 924(c) and the federal bank robbery statute, 18 U.S.C. § 2113, which, like the assault provision at issue here, 18 U.S.C. § 111, predates § 924(c) and provides by its own terms for enhanced punishment where the felony is committed with a dangerous weapon.6 Relying upon the legislative history and applicable canons of statutory construction, Simpson held that the Congress cannot be understood to have intended that a defendant who has been convicted of robbing a bank with a firearm may be sentenced under both § 924(c) and § 2113(d). The parties to the instant cases agree that Simpson clearly prohibits the imposition on these petitioners of similarly enhanced sentences under both § 924(c) and § 111. But the Government contends that Simpson resolved only the double enhancement question—that the Court's holding and opinion should not be read to find § 924(c) inapplicable where the prosecution proceeds under that provision rather than the enhancement provision of a predicate felony statute like § 111. Such a reading, the Government asserts, is supported by the facts presented in Simpson,7 the language used to describe the actual "holding,"8 the most likely inferences that may be drawn as to what Congress would have wanted had it focussed on the precise problem,9 and the asserted irrationality of some of the consequences that would flow from a holding that § 924(c) is inapplicable in cases like the present cases.10 7 We disagree. In our view, Simpson's language and reasoning support one conclusion alone—that prosecution and enhanced sentencing under § 924(c) is simply not permissible where the predicate felony statute contains its own enhancement provision. This result is supported not only by the general principles underlying the doctrine of stare decisis —principles particularly apposite in cases of statutory construction—but also by the legislative history and relevant canons of statutory construction. The Government has not persuaded us that this result is irrational or depends upon implausible inferences as to congressional intent. And to the extent that cases can be hypothesized in which this holding may support curious or seemingly unreasonable comparative sentences, it suffices to say that the asserted unreasonableness flows not from Simpson and this decision, but rather from the statutes as Congress wrote them. If corrective action is needed, it is the the Congress that must provide it. "It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated." TVA v. Hill, 437 U.S. 153, 185, 98 S.Ct. 2279, 2297, 57 L.Ed.2d 117 (1978). 8 Our reasoning has several strands. It begins, as indeed it must, with the text and legislative history of § 924(c). By its terms, that provision tells us nothing about the way Congress intended to mesh the new enhancement scheme with analogous provisions in pre-existing statutes defining federal crimes. Moreover, as Simpson noted, 435 U.S., at 13, 98 S.Ct., at 913, and n. 7, § 924(c) was offered as an amendment on the House floor by Representative Poff, 114 Cong.Rec. 22231 (1968), and passed on the same day. Id., at 22248. Accordingly, the committee reports and congressional hearings to which we normally turn for aid in these situations simply do not exist, and we are forced in consequence to search for clues to congressional intent in the sparse pages of floor debate that make up the relevant legislative history. The crucial material for present purposes is the following observation by Representative Poff: 9 "For the sake of legislative history, it should be noted that my substitute is not intended to apply to title 18, sections 111, 112, or 113 which already define the penalties for the use of a firearm in assaulting officials, with sections 2113 or 2114 concerning armed robberies of the mail or banks, with section 2231 concerning armed assaults upon process servers or with chapter 44 which defines other firearm felonies." Id., at 22232. 10 Simpson pointed out that "[t]his statement is clearly probative of a legislative judgment that the purpose of § 924(c) is already served whenever the substantive federal offense provides enhanced punishment for use of a dangerous weapon." 435 U.S., at 13, 98 S.Ct., at 913. Moreover, Representative Poff's remarks were the only ones touching on the present question that were before the House when § 924(c) was adopted, and it is therefore reasonable to assume that they represent the understanding of the Congressmen who voted for the proposal.11 11 Reliance on Representative Poff's statement of legislative intent is consistent with the position taken by the Department of Justice in 1971 when it advised prosecutors not to proceed under § 924(c)(1) if the predicate felony statute provided for " 'increased penalties where a firearm is used in the commission of the offense.' " Simpson, supra at 16, 98 S.Ct. at 915, quoting 19 U.S.Attys. Bull. No. 3, p. 63 (U.S. Dept. of Justice, 1971). Moreover, this view is fully consistent with two tools of statutory construction relied upon in Simpson. The first is the oft-cited rule that " 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.' " United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971), quoting Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). And the second is the principle that a more specific statute will be given precedence over a more general one, regardless of their temporal sequence. Preiser v. Rodriguez, 411 U.S. 475, 489-490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973). In Simpson, these principles counseled against double enhancement. They served as "an outgrowth of our reluctance to increase or multiply punishments absent a clear and definite legislative directive." 435 U.S., at 15-16, 98 S.Ct., at 914. Here they play a similar role, and thus help confirm the conclusion that § 924(c) may not be applied at all in the present situation. 12 The Government seeks to minimize the force of these principles of statutory construction by urging (1) that there is no ambiguity in § 924(c) and thus that the rule of lenity is not properly called into play and (2) that in fact it is § 924(c) that is the more specific statute because it relates only to firearms while § 111 would permit enhancement for any dangerous weapon. We find each contention flawed. As to the first, the claim that there exists no ambiguity does not stand up. Plainly the text of the statute fails to address the issue pertinent to decision of these cases—whether Congress intended (1) to provide for enhanced penalties only for crimes not containing their own enhancement provisions, (2) to provide an alternative enhancement provision applicable to all felonies, or (3) to provide a duplicative enhancement provision which would permit double enhancement where the underlying felony was proscribed by a statute like § 111. Our task here, as in Simpson, is to ascertain as best we can which approach Congress had in mind. The rule of lenity, like reference to appropriate legislative materials, is one of the tools we use to do so. 13 The Government's second contention—that § 924(c) rather that § 111 should be viewed as the more specific statute—is both facially unpersuasive12 and likely to lead to curious consequences. Indeed, were the Government correct we would be forced to conclude that with regard to firearms cases § 924(c) impliedly repealed all pre-existing enhancement provisions. Yet there is not a shred of evidence to suggest that this is what Congress intended. Moreover, such a result would be inconsistent with Simpson13 and in any event would not give the Government what it wants because it would not permit the prosecutor to choose between § 924(c) and § 111. 14 In addition to contesting the rule of lenity and specific-versus-general arguments, the Government contends that our reading of the legislative materials is unreasonable because those who supported the Poff amendment—including Representative Poff himself—were clearly committed to meting out stiff penalties for use of a firearm in the course of a felony and would not have followed any course inconsistent with that commitment. The argument is overdrawn. In the first place, we do not think our construction is inconsistent with a congressional desire to deal severely with firearm abuses. As we understand it, the Government's argument is not that our construction reads Congress to have diminished the penalty for firearm use, but only that our construction fails to enhance that penalty to the hilt. Yet it is patently clear that Congress too has failed to enhance that penalty to the hilt—it set maximum sentences as well as a variety of other limits on the available punishment. Thus, while Congress had a general desire to deter firearm abuses, that desire was not unbounded. Our task here is to locate one of the boundaries, and the inquiry is not advanced by the assertion that Congress wanted no boundaries. 15 More specifically, some accommodation between § 924(c) and statutes like § 111 is obviously necessary. And since some pre-existing statutes provided for sentences less severe than § 924(c) and others for penalties more severe,14 any rule of priority would lead in certain circumstances to a punishment less severe that might have been achieved under another rule of priority. The Government in effect argues that had Representative Poff and his colleagues foreseen this problem they would have eschewed any priority rule and instead rested complete discretion in the prosecutor. We do not dispute that a rule permitting prosecutors freedom of choice might give greater effect to a legislative desire to increase the penalties for firearm use, but the same could be said of any number of constructions of the statute, including the one rejected in Simpson. Indeed, by rejecting double enhancement Simpson exposes the stark and unidimensional quality of any calculus which attempts to construe the statute on the basis of an assumption that in enacting § 924(c) Congress' sole objective was to increase the penalties for firearm use to the maximum extent possible. 16 The fact that the enhanced sentences authorized in some predicate felony statutes are greater than those set forth in § 924(c) while those in others are less provides a partial response to the Government's contention that our construction would lead to irrational sentencing patterns in which some less severe crimes are punished more than other more severe ones.15 The fact is that any interpretation might have led to differences in treatment that are not intuitively reasonable. In consequence, the presence of differences here fails to shake our confidence in our construction. More broadly, it is simply not for this Court to substitute its accommodation between old and new enhancement provisions for the one apparently chosen by Congress. On the contrary, "in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with 'commonsense and the public weal.' " TVA v. Hill, 437 U.S., at 195, 98 S.Ct., at 2302. III 17 What we have said thus far disposes of LaRocca's case by making it clear that he may not be sentenced under § 924(c) for using his gun to assault the federal officers. This holding also applies in Busic's case. But in that case the Government has a fallback position. Even if a person who uses a gun to violate § 111 may not be sentenced for doing so under § 924(c)(1), the argument goes, a person who carries a gun in the commission of a § 111 violation may be sentenced under § 924(c)(2) because the enhancement provision of § 111 does not apply to those who carry but do not use their weapons. Thus, the Government urges, whatever our holding with regard to LaRocca, Busic may be sentenced under § 924(c)(2) for carrying his gun while committing the crime of aiding and abetting LaRocca's violation of § 111. 18 The central flaw in this argument as applied here is that Busic is being punished for using a weapon. Through the combination of § 111 and 18 U.S.C. § 2, he was found guilty as a principal of using a firearm to assault the undercover agents.16 LaRocca's gun, in other words, became Busic's as a matter of law. And the Government's argument thus amounts to the contention that had Busic shot one gun at the officers and carried another in his belt he could have been punished under § 111 for the one he fired and under § 924(c)(2) for the one he did not fire. Similarly, this argument would suggest, Busic might be punished for carrying a gun in his belt and also for shooting that same gun. Yet such results are wholly implausible. They would stand both Simpson and our holding in Part II, supra, on their heads, impute to Congress the unlikely intention to punish each weapon as a separate offense, and create a situation in which aiders and abettors would often be more culpable and more severely punished than those whom they aid and abet.17 We decline to read the statutes to produce such an ungainly result. It seems to us that our holding of Part II is equally applicable here—Busic's vicarious assault and use of a dangerous weapon are subject to prosecution and punishment under § 111 and he has been duly prosecuted and punished pursuant to that provision. In such a case, Simpson, the legislative history, and applicable canons of statutory construction make it clear that neither subsection of § 924(c) is available.18 19 These cases are reversed and remanded to the Court of Appeals for proceedings consistent with this opinion.19 20 So ordered. 21 Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring. 22 I join the Court's opinion, holding that the decision in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), leads to the conclusion that 18 U.S.C. § 924(c) is inapplicable where a defendant is charged with committing a substantive federal offense violative of a statute that already provides for enhanced punishment for the use of a firearm. 23 It should be made clear, however, that the Court of Appeals' initial opinion in these cases, discussed by the Court, ante, at 401-402, reflects the confusion that has existed among lower courts about the meaning of this Court's recent pronouncements respecting the multiple punishments aspect of the Double Jeopardy Clause. See Whalen v. United States, 445 U.S. 684, 697-698, 100 S.Ct. 1432, 1440-1442, 63 L.Ed.2d 715 (1980) (BLACKMUN, J., concurring in judgment). The Court of Appeals there rejected the view that Congress did not intend the enhancement provisions of § 924(c) to apply when the substantive offense charged was 18 U.S.C. § 111. See 3rd Cir., 587 F.2d 577, 581-582, and n. 3. The decision in Simpson, of course, revealed the error of that holding. But the Court of Appeals went on to hold that regardless of Congress' intent to provide for enhanced punishment in this context, the Double Jeopardy Clause prevented it from doing so, at least in certain cases. See id., at 582-584. I do not subscribe to that view, and write separately only to state, once again, that it is my belief that when defendants are sentenced in a single proceeding, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Whalen v. United States, 445 U.S., at 698, 100 S.Ct., at 1441 (BLACKMUN, J., concurring in judgment). 24 Mr. Justice STEWART, with whom Mr. Justice STEVENS joins, dissenting. 25 Under 18 U.S.C. § 924(c), "[w]hoever—(1) uses a firearm to commit any [federal] felony . . ., or (2) carries a firearm unlawfully during the commission of any [federal] felony," is subject to a term of imprisonment in addition to that provided for the felony in question. In Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70, which involved both § 924(c)(1) and a felony proscribed by a statute that itself authorizes an enhanced penalty if a dangerous weapon is used, the Court held that Congress did not intend to authorize the imposition of enhanced punishments for a single criminal transaction under both § 924(c)(1) and the enhancement provision for the predicate felony. The Court today concludes that Congress not only did not intend to authorize the imposition of double enhancement, but also did not intend § 924(c)(1) to apply at all to a felony proscribed by a statute with its own enhancement provision. I disagree. It is my view that § 924(c)(1) was intended to apply to all federal felonies, though subject to the limitation in Simpson against double enhancement. 26 Congress enacted § 924(c) as part of the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1213. That legislation, enacted the year in which both Robert Kennedy and Martin Luther King, Jr., were assassinated, was addressed largely to the "increasing rate of crime and lawlessness and the growing use of firearms in violent crime." H.R.Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968), U.S.Code Cong. & Admin.News 1968, pp. 4410, 4412. A primary objective of § 924(c), as explained by its sponsor, Representative Poff, was to "persuade the man who is tempted to commit a Federal felony to leave his gun at home." 114 Cong.Rec. 22231 (1968). Towards that end, § 924(c) provides for a prison term, in addition to that provided for the underlying felony, of not less than 1 year nor more than 10 in the case of a first offender, and of not less than 2 years nor more than 25 in the case of a second or subsequent offender. It further provides that a sentence imposed under § 924(c) is not to run concurrently with the sentence for the predicate felony and that, in cases of repeat offenders, the defendant cannot receive probation or a suspended sentence. 27 Before the enactment of § 924(c), earlier Congresses had already authorized enhanced penalties for using a dangerous weapon in the commission of certain especially serious federal felonies, including assault on a federal officer, 18 U.S.C. § 111, and bank robbery, 18 U.S.C. §§ 2113(a), (d). Those enhancement provisions authorize terms of imprisonment of (1) not more than an additional seven years under § 111, and (2) not more than an additional five years under §§ 2113(a), (d). Neither provision requires a mandatory minimum additional sentence or authorizes increased additional sentences for recidivists. 28 In Simpson, the Court held that Congress did not intend the imposition of enhanced punishments under both § 924(c)(1) and the enhancement provision for a predicate felony. That conclusion found substantial support in the statement of Representative Poff on the House floor that "[f]or the sake of legislative history, it should be noted that my [bill] is not intended to apply to title 18, sections 111, 112, or 113 which already define the penalties for the use of a firearm in assaulting officials, with sections 2113 or 2114 concerning armed robberies of the mail or banks, with section 2231 concerning armed assaults upon process servers or with chapter 44 which defines other firearm felonies." 114 Cong.Rec. 22232 (1968). 29 The issue here is not that of double punishment, but instead whether the Government may obtain enhancement of punishment under § 924(c)(1), rather than under the enhancement provision for the predicate felony. The Court today concludes that Congress did not intend § 924(c)(1) to apply at all to a predicate felony proscribed by a statute with its own enhancement provision. It is thus the Court's view that the Government may obtain an enhanced sentence only under the enhancement provision for the underlying felony itself. 30 Although this conclusion finds support in certain passages in Simpson and in the literal terms of Representative Poff's statement on the House floor, it is not supported by the actual holding in Simpson, the language of the statute itself, or a fair appraisal of the intent of Congress in enacting § 924(c). In Simpson, the Court decided only that "in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced [to enhanced punishments] under both § 2113(d) and § 924(c)." 435 U.S., at 16, 98 S.Ct., at 915 (emphasis added). The Court did not decide whether § 924(c)(1) is available as an alternative enhancement provision. On this latter question, the statutory language is unambiguous, for § 924(c)(1) provides, by its terms, for an enhanced penalty for "[w]hoever . . . uses a firearm to commit any [federal] felony." (Emphasis added.) 31 To be sure, Representative Poff stated that his bill "[was] not intended to apply" to certain felonies proscribed by statutes that contain their own enhancement provisions. But that statement could as easily have been directed to the question in Simpson whether § 924(c)(1) can be invoked in addition to a previously enacted enhancement provision—as to the question in this case whether § 924(c)(1) can be invoked in lieu of such a provision. 32 I agree with the holding in Simpson that Congress did not intend to "pyramid" punishments for the use of a firearm in a single criminal transaction. Yet I find quite implausible the proposition that Congress, in enacting § 924(c)(1), did not intend this general enhancement provision—with its stiff sanctions for first offenders and even stiffer sanctions for recidivists—to serve as an alternative source of enhanced punishment for those who commit felonies, such as bank robbery and assaulting a federal officer, that had been previously singled out by Congress as warranting special enhancement, but for which a lesser enhancement sanction than that imposed by § 924(c) had been authorized. In the light of the expressed concerns of Congress in enacting the Gun Control Act of 1968 in general and § 924(c)(1) in particular, it is far more reasonable to conclude that Congress intended § 924(c)(1) to mean precisely what it says, namely, that it applies to any federal felony. 33 It is my view, in sum, that § 924(c)(1) applies to all federal felonies, though subject to the limitation in Simpson against double punishment. Under this reading of the statute, the Government may obtain an enhanced sentence under either § 924(c)(1) or the enhancement provision for the predicate felony, but not under both. 34 For the foregoing reasons, I dissent.* 35 Mr. Justice REHNQUIST, dissenting. 36 I dissented from this Court's decision in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), and continue to believe that case was wrongly decided. Now, as then, I am quite amazed at this Court's ability to say that 18 U.S.C. § 924(c) "tells us nothing about the way Congress intended to mesh the new enhancement scheme with analogous provisions in pre-existing statutes defining federal crimes," ante, at 405, even though that section provides quite clearly that the use of a firearm in the commission of "any felony" shall be punished by up to 10 years' imprisonment "in addition to the punishment provided for the commission of such felony . . . ." Nor do I find any more persuasive the Court's rehash of the legislative history of § 924(c), including Simpson § unwarranted reliance upon the remark of Representative Poff, a remark that the Court today labels "the Poff rule," see ante, at 409, n. 14, and that might more properly be labeled "the Poff amendment" (albeit not intended as such by its proponent). 37 Were Simpson demonstrably a case of statutory construction, I could acquiesce to the Court's reading of § 924(c) in the interest of stare decisis. Simpson, however, was based to an unstated degree on this Court's assumption that § 924(c) raised "the prospect of double jeopardy" because it provided for additional punishment on "precisely the same factual showing" as would be necessary for conviction of the underlying felony involved in that case. See 435 U.S., at 11, 98 S.Ct., at 912. In Simpson the Court treated the question of the constitutionality of § 924(c) as if it were separate from the question whether Congress intended to allow cumulative punishment, insisting at one point that "[b]efore an examination is made to determine whether cumulative punishments for the two offenses are constitutionally permissible, it is necessary . . . to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged." 435 U.S., at 11-12, 98 S.Ct., at 913. In dissent, I noted the constitutional undercurrents of the Court's opinion and suggested its concerns were "gauzy" and "metaphysic[al]." Id., at 18, 98 S.Ct., at 915. 38 Recently, this Court unanimously rejected Simpson 's constitutional premise. In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), six Members of this Court held that Congress' intent to impose cumulative punishments at a single criminal proceeding completely controlled the question of double jeopardy. See id., at 688-689, 100 S.Ct., at 1436; id., at 697-698, 100 S.Ct., at 1441 (BLACKMUN, J., concurring in judgment). See also ante, at 697-698 (BLACKMUN, J., concurring). Three other Members of this Court, including myself, argued that the permissibility of cumulative punishments in the same criminal proceeding presented no double jeopardy question whatsoever. See Whalen v. United States, supra, at 696, 100 S.Ct., at 1440 (WHITE, J., concurring in part and concurring in judgment); at 701-707, 100 S.Ct., at 1443-1446 (REHNQUIST, J., joined by BURGER, C. J., dissenting). I believe that this Court, having thus disposed of Simpson § constitutional underpinnings, should reconsider its holding that § 924(c) does not, in fact, apply to "any felony." I know of no cases besides Simpson and the present decision where this Court has taken a criminal statute absolutely clear on its face, has looked to the legislative history to create an "ambiguity," and then has resolved that ambiguity in a manner totally at odds with the statute's plain wording. Because I believe Simpson was wrongly decided, and because this Court has now repudiated Simpson § constitutional premise, I would overrule Simpson, vacate the judgments below, and remand for reconsideration by the Court of Appeals. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 The facts are recited in the opinion of the United States Court of Appeals for the Third Circuit. 587 F.2d 577, 579-580 (1978). 2 The five narcotics counts alleged violations of 21 U.S.C. §§ 841(a)(1), 843(b), and 846. The firearms counts involving both petitioners charged violations of 26 U.S.C. §§ 5861(c), 5861(d), and 5871, and 18 U.S.C. §§ 922(h) and 924(a). LaRocca was named in six of these counts and Busic in five. In addition, Busic was convicted on three counts of unlawful firearms possession in violation of 18 U.S.C.App. § 1202(a)(1). The indictment is reproduced at App. 5-15. 3 The § 924(c) counts on which the two were convicted recited as predicate felonies both the narcotics violations and the assaults on federal officers. In the courts below the Government attempted to support the § 924(c) convictions in part by arguing that whatever their validity when superimposed on the assault charges, they could validly be grounded on the drug counts. The Court of Appeals rejected this contention, concluding that the jury might have found the drug conspiracy to have come to an end before the robbery and assault. 587 F.2d, at 584, n. 5, and 588, n. 3. The Government does not press this argument in this Court, and we accordingly treat the cases as though the § 924(c) charges recited only the assaults on federal officers as predicate felonies. 4 Title 18 U.S.C. § 111 provides as follows: "Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both. "Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both." Among the persons designated in 18 U.S.C. § 1114 are officers or employees of the Drug Enforcement Administration. 5 Title 18 U.S.C. § 924(c) provides: "Whoever— "(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or "(2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States[,] "shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to a term of imprisonment for not less than two nor more than twenty-five years and, notwithstanding any other provision of law, the court shall not suspend the sentence in the case of a second or subsequent conviction of such person or give him a probationary sentence, nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony." 6 For present purposes, §§ 2113 and 111 are fully analogous. Therefore, what Simpson held of the relationship between § 924(c) and the one applies to that section's relationship with the other as well. 7 Petitioners in Simpson had been sentenced under both enhancement provisions, 435 U.S., at 9, 98 S.Ct., at 911. 8 Simpson's final paragraph stated in part: "Accordingly, we hold that in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both § 2113(d) and § 924(c)." Id., at 16, 98 S.Ct., at 915. 9 Section 924(c) was enacted as part of the Gun Control Act of 1968 in the wake of the assassinations of Senator Robert F. Kennedy and Rev. Martin Luther King, Jr. It clearly was an attempt to take major steps to prevent firearm abuses. Thus, it is argued, it is unlikely that Congress would have wanted the severe penalties of § 924(c) to be pre-empted by less stringent penalties provided in pre-existing enhancement provisions. 10 For example, the Government notes that under such a holding a person who breaks into a Post Office in violation of 18 U.S.C. § 2115, which contains no enhancement provision, could receive an extra 10 years under § 924(c) for using a gun to shoot the lock off. In contrast, the sentence of a person who draws a gun and fires a number of shots while robbing a bank could not be enhanced under that provision because the bank robbery statute's enhancement clause would take precedence. That clause, § 2113(d), permits a sentence of up to 25 years, but even if he had not used a weapon this person could have received 20 years under § 2113(a). Accordingly, the incremental penalty the bank robber can receive for using the firearm is only 5 years as opposed to 10 for the Post Office robber. 11 This interpretation receives additional support from the fact that the conference Committee chose the Poff version over a Senate proposal which, according to its sponsor, 114 Cong.Rec. 27142 (1968), would have permitted enhancement for the use of a firearm even where the predicate offense contained its own enhancement clause. H.R.Conf.Rep.No.1956, 90th Cong., 2d Sess., 31-32 (1968), U.S.Code Cong. & Admin.News 1968, p. 4410. We recognize, as the Government points out, that the Senate version differed in other respects as well; but insofar as it points in any direction this chain of events supports reliance on the Poff statement. 12 Indeed, § 924(c) is itself fairly broad. It refers to "firearms," a term defined in 18 U.S.C. §§ 921(a)(3) and (4) to include bombs, grenades, rockets, mines, and similar devices in addition to guns. 13 The disposition in Simpson was to remand for proceedings consistent with the opinion of the Court. On remand, the Court of Appeals vacated the § 924(c) sentences and approved and affirmed those under § 2113(d)—a disposition that would have been improper were the Government correct in its specificity argument. 14 Section 924(c) provides for maximum incremental penalties for use of a firearm of 10 years for a first offender and 25 years for a second offender. Under § 2113, the incremental penalty available for use of a dangerous weapon in the course of an otherwise forceful bank robbery is 5 years (25 years under § 2113(d) less 20 years under § 2113(a)), while the incremental penalty for using a weapon in the course of an otherwise nonviolent robbery is 15 years (25 years less 10 years under § 2113(b)) if the goods taken are worth more than $100 and 24 years (25 years less 1 year) if the goods taken are worth less. And under 18 U.S.C. § 2114, another statute referred to by Representative Poff, the incremental cost to the defendant of using a gun to assault a person having custody of the mail or property of the United States is 15 years. Thus, a ruling making § 924(c) pre-emptive would increase some incremental penalties while actually decreasing others. In contrast, the Poff rule merely leaves these penalties where they were set by Congress in the first place-it makes no existing firearm penalty smaller or larger. 15 One of the Government's examples is described in n. 10, supra. The unlikeliness of the hypothetical and the fact that it compares only incremental and not total penalties suggest that the possibility of genuinely troubling comparative sentences may be exaggerated. 16 Title 18 U.S.C. § 2 provides in relevant part that "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 17 On these facts, for example, the Government's view would permit Busic—the aider and abettor—to be sentenced under both § 924(c) and § 111—while LaRocca—the triggerman—could be sentenced only under the latter. That this is so is a product not of our holding in Part II, but of the Government's theory itself. This is quite clear if one assumes for purposes of argument that LaRocca could have been punished under § 924(c)(1) for using his gun. Were that the case, Busic, too would have been guilty of that crime as an aider and abettor. And the Government's argument here would lead to the conclusion that he could also be guilty of violating § 924(c)(2) by carrying his own gun. In short, while he neither shot now drew his gun, he would have been subject to fully twice the penalties that would have faced his more culpable comrade. 18 Our result with regard to Busic flows as much from the logic and language of 18 U.S.C. § 2 as from anything peculiar to § 924(c). Section 2 makes Busic punishable "as a principal," and those words mean what they say. One consequence is that aiders and abettors may be held vicariously liable "regardless of the fact that they may be incapable of committing the specific violation which they are charged to have aided and abetted." S.Rep. No. 1020, 82d Cong., 1st Sess., 7 (1951) U.S.Code Cong. & Admin.Serv. 1951, pp. 2578, 2583. Another is that there will inevitably exist cases in which a decision to treat an aider and abettor as a principal may be inconsistent with prosecuting and punishing him as well for some of his individual acts of aiding and abetting. Phrased differently, once he has been treated as a principal some of his lesser acts in furtherance of the central violation may merge into it. On these facts, § 2 appears to require that we treat Busic as though he used LaRocca's gun to commit this assault. It would be incongruous to treat him at the same time as a separate individual punishable as though he had carried a different gun in the course of a different crime. 19 The Government makes a conditional plea that should we find § 924(c) to be inapplicable to these petitioners we vacate not only the § 924(c) sentences, but also those imposed by the District Court under § 111. This, the Government urges, would permit that court to resentence petitioners under the enhancement provision of the latter statute. The argument is that the District Court intended to deal severely with the assaults in question and should not be prevented from doing so by its choice of the incorrect enhancement provision. The Court of Appeals has not considered this contention in this context and we are reluctant to do so without the benefit of that court's views. Accordingly, we express no opinion as to whether in the particular circumstances of these cases such a disposition would be permissible. * I do not agree with the Court of Appeals that Busic could be given enhanced punishments both for aiding and abetting LaRocca's armed assault on a federal officer, in violation of 18 U.S.C. §§ 2, 111, and for unlawfully carrying his own gun while doing so, in violation of 18 U.S.C. § 924(c)(2). Since Busic was convicted of armed assault "as a principal" under the aiding and abetting statute, 18 U.S.C. § 2 he must be viewed as having used LaRocca's gun as well as carried his own in the course of committing the offense; and, like the Court, ante, at 410-411, I am unpersuaded that § 924(c) authorizes cumulative punishments for the use of one gun and the unlawful carrying of another in a single criminal transaction. It is my view, therefore, that Busic could have been given an enhanced sentence under either § 924(c)(2) or §§ 2, 111, but not under both.

01

446 U.S. 500 100 S.Ct. 1803 64 L.Ed.2d 458 Cecil D. ANDRUS, Secretary of the Interior, Petitioner,v.State of UTAH. No. 78-1522. Argued Dec. 5, 1979. Decided May 19, 1980. Rehearing Denied June 30, 1980. See 448 U.S. 907, 100 S.Ct. 3051. Syllabus * Section 7 of the Taylor Grazing Act, as amended in 1936, authorizes the Secretary of the Interior (Secretary), in his discretion, to classify, as proper not only for homesteading but also for satisfaction of any outstanding "lieu" rights, both lands within federal grazing districts and any unappropriated and unreserved public lands withdrawn by Executive Order from "settlement, location, sale or entry" pending a determination of the best use of the lands, and to open all such lands to "selection." Section 7 further provides that such lands shall not be subject to disposition until they have been classified. Pursuant to § 7, the Secretary refused Utah's selection of extremely valuable oil shale lands located within federal grazing districts in lieu of and as indemnification for original school land grants of significantly lesser value that were frustrated by federal pre-emption or private entry prior to being surveyed. In so acting, the Secretary followed the policy that, in the exercise of his discretion under § 7, indemnity applications involving grossly disparate values would be refused. Utah filed suit in Federal District Court, which, upon stipulated facts, entered summary judgment for the State. The Court of Appeals affirmed, holding that § 7 gave the Secretary no authority to classify land as eligible for selection and that Utah had a right to select indemnity land of equal acreage without regard to the relative values of the original school land grants and the indemnity selections. Held : Section 7 confers on the Secretary the authority, in his discretion, to classify lands within a federal grazing district as proper for school indemnity selection. His "grossly disparate value" policy is a lawful exercise of the broad discretion vested in him by § 7 and is a valid ground for refusing to accept Utah's selections. Such policy is wholly faithful to Congress' consistent purpose, in providing for indemnity selections, of giving the States a rough equivalent of the school land grants in place that were lost through pre-emption or private entry prior to survey. Pp. 506-520. 586 F.2d 756, reversed. Peter Buscemi, Washington, D. C., pro hac vice, by special leave of Court, for petitioner. Richard L. Dewsnup, Salt Lake City, Utah, for respondent. Mr. Justice STEVENS delivered the opinion of the Court. 1 The State of Utah claims the right to select extremely valuable oil shale lands located within federal grazing districts in lieu of and as indemnification for original school land grants of significantly lesser value that were frustrated by federal pre-emption, or private entry, prior to survey. The question presented is whether the Secretary of the Interior is obliged to accept Utah's selections of substitute tracts of the 2 [Amicus Curiae Information from page 501 intentionally omitted] same size as the originally designated sections even though there is a gross disparity between the value of the original grants and the selected substitutes. We hold that the Secretary's "grossly disparate value" policy is a lawful exercise of the broad discretion vested in him by § 7 of the Taylor Grazing Act of 1934, 48 Stat. 1272, as amended in 1936, 49 Stat.1976, 43 U.S.C. § 315f, and is a valid ground for refusing to accept Utah's selections. 3 Utah became a State in 1896. In the Utah Enabling Act of 1894, Congress granted Utah, upon admission, four numbered sections in each township for the support of public schools. The statute provided that if the designated sections had already "been sold or otherwise disposed of" pursuant to another Act of Congress, "other lands equivalent thereto . . . are hereby granted." The substitute grants, denominated "indemnity lands" were "to be selected within [the] State in such manner as [its] legislature may provide with the approval of the Secretary of the Interior."1 4 Because much of the State was not surveyed until long after its admission to the Union, its indemnity or "in lieu" selections were not made promptly. On September 10, 1965, Utah filed the first of 194 selection lists with the Bureau of Land Management of the Department of the Interior covering the land in dispute in this litigation. The 194 indemnity selections include 157,255.90 acres in Uintah County, Utah, all of which are located within federal grazing districts created pursuant to the Taylor Grazing Act. 5 In January 1974, before Utah's selection lists had been approved or disapproved, the Governor of Utah agreed that the Secretary of the Interior could include two tracts comprising 10,240 acres of selected indemnity lands in an oil shale leasing program, on the understanding that the rental proceeds would ultimately be paid to the State if its selections were approved. The proceeds of the leases are of substantial value.2 6 In February 1974, the Secretary advised the Governor that he would not approve any indemnity applications that involved "grossly disparate values."3 He wrote: 7 "As you know, the Department of the Interior has not as yet acted upon the State's [indemnity] applications. The principal question presented by the applications is whether pursuant to Section 7 of the Taylor Grazing Act, 48 Stat. 1272 (1934), as amended, 43 U.S.C. § 315f (1972), the Department may refuse to convey applied-for lands to a State where the value of those lands greatly exceeds the value of the lost school lands for which the State seeks indemnity. In January 1967, the then Secretary of the Interior adopted the policy that in the exercise of his discretion under, inter alia, Section 7 of the Taylor Grazing Act, he would refuse to approve indemnity applications that involve grossly disparate values. That policy remains in effect. 8 "In the present case, although the land values are not precisely determined, it appears that the selections involve lands of grossly disparate values, within the meaning of the Department's policy. While the Department is not yet prepared to adjudicate the State's applications, I feel it is appropriate at this time to advise you that we will apply the above-mentioned policy in that adjudication."4 9 The State promptly filed this action in the United States District Court for the District of Utah. The facts were stipulated, and Judge Ritter entered summary judgment in favor of the State. He held that if Utah's selections satisfy all of the statutory criteria governing indemnity selections when filed,5 the Secretary has no discretion to refuse them pursuant to a "grossly disparate value" policy. The Court of Appeals for the Tenth Circuit affirmed, Utah v. Kleppe, 586 F.2d 756 (1978), holding that § 7 of the Taylor Grazing Act gave the Secretary no authority to classify land as eligible for selection and that the State had a right to select indemnity land of equal acreage without regard to the relative values of the original grants and the indemnity selections. 10 Because the dispute between the parties involves a significant issue regarding the disposition of vast amounts of public lands,6 we granted certiorari. 442 U.S. 928, 99 S.Ct. 2857, 61 L.Ed.2d 296. We believe that the Court of Appeals and the District Court failed to give proper effect to the congressional policy underlying the provision for indemnity selection, and specifically misconstrued § 7 of the Taylor Grazing Act as amended in 1936. We therefore reverse. 11 * The Enabling Act of each of the public-land States admitted into the Union since 1802 has included grants of designated sections of federal lands for the purpose of supporting public schools.7 Whether the Enabling Act contained words of present or future grant, title to the numbered sections did not vest in the State until completion of an official survey. Prior to survey, the Federal Government remained free to dispose of the designated lands "in any manner and for any purpose consistent with applicable federal statutes."8 In recognition of the fact that the essentially random grants in place might therefore be unavailable at the time of survey for a variety of reasons,9 Congress authorized grants of indemnity or "lieu" lands of equal acreage. 12 As Utah correctly emphasizes, the school land grant was a "solemn agreement" which in some ways may be analogized to a contract between private parties. The United States agreed to cede some of its land to the State in exchange for a commitment by the State to use the revenues derived from the land to educate the citizenry. 13 The State's right to select indemnity lands may be viewed as the remedy stipulated by the parties for the Federal Government's failure to perform entirely its promise to grant the specific numbered sections. The fact that the Utah Enabling Act used the phrase "lands equivalent thereto" and described the substituted lands as "indemnity lands" implies that the purpose of the substitute selections was to provide the State with roughly the same resources with which to support its schools as it would have had had it actually received all of the granted sections in place.10 Thus, as is typical of private contract remedies, the purpose of the right to make indemnity selections was to give the State the benefit of the bargain. 14 The history of the general statutes relating to land grants for school purposes confirms this view. Thus, for example, in 1859, when confronted with the fact that many settlers had occupied unsurveyed lands that had been included in school grants, Congress confirmed the settlers' claims and granted to the States "other lands of like quantity." Ch. 58, 11 Stat. 385. The substitution of an equal quantity of land provided the States a rough measure of equal value. 15 The school land grants gave the States a random selection of public lands subject, however, to one important exception. The original school land grants in general, and Utah's in particular, did not include any numbered sections known to be mineral in character by the time of survey. United States v. Sweet, 245 U.S. 563, 38 S.Ct. 193, 62 L.Ed. 473. This Court so held even though the Utah Enabling Act "neither expressly includes mineral lands nor expressly excludes them." Id., at 567, 38 S.Ct. at 193. The Court's opinion stressed "the practice of Congress to make a distinction between mineral lands and other lands, to deal with them along different lines, and to withhold mineral lands from disposal save under laws specially including them." Ibid. Mineral lands were thus excluded not only from the original grants in place but also from the indemnity selections.11 Since mineral resources provide both the most significant potential source of value and the greatest potential for variation in value in the generally arid western lands, the total exclusion of mineral lands from the school land grants is consistent with an intent that the States' indemnity selections of equal acreage approximate the value of the numbered sections lost. 16 In 1927, some nine years after the decision in United States v. Sweet, supra, Congress changed its policy to allow grants of school lands to embrace numbered sections that were mineral in character.12 But the 1927 statute did not expand the kinds of land available for indemnity selections.13 Thus, after 1927, even if the lost school lands were mineral in character, a State was prohibited from selecting mineral lands as indemnity. It was not until 1958 that Congress gave the States the right to select mineral lands to replace lost school lands, and that right was expressly conditioned on a determination that the lost lands were also mineral in character. 72 Stat. 928, 43 U.S.C. § 852. See n. 5, supra. For 30 years, then, States were not even permitted to select lands roughly equivalent in value to replace lost mineral lands. The condition in the 1958 statute, that the lost lands be mineral in character before mineral lands could be selected as indemnity, rather clearly reflects an intention to restore the character of the indemnity selection as a substitute of roughly equal value.14 17 Throughout the history of congressional consideration of school land grants and related subjects—a history discussed at great length in the voluminous briefs submitted to us—we find no evidence whatever of any congressional desire to have the right to select indemnity lands do anything more than make the States whole for the loss of value resulting from the unavailability of the originally designated cross section of lands within the State. There is certainly no suggestion of a purpose at any time, including 1958, to allow the States to obtain substantially greater values through the process of selecting indemnity land. 18 Thus, viewing the program in this broad historical perspective, it is difficult to identify any sensible justification for Utah's position that it is entitled to select any mineral lands it chooses regardless of the value of the school sections lost. Nevertheless, Utah is quite correct in arguing that the Secretary has no power to reject its selections unless Congress has given it to him. We have no doubt that it has. II 19 Prior to the 1930's, cases in this Court had made it perfectly clear that the Federal Government retained the power to appropriate public lands embraced within school grants for other purposes if it acted in a timely fashion. On the other hand, it was equally clear that the States' title to unappropriated land in designated sections could not be defeated after survey, and that their right to indemnity selections could not be rejected if they satisfied the statutory criteria when made, and if the selections were filed before the lands were appropriated for other purposes. The authority of the Secretary of the Interior was limited to determining whether the States' indemnity selections met the relevant statutory criteria. See Wyoming v. United States, 255 U.S. 489, 41 S.Ct. 393, 65 L.Ed. 742; Payne v. New Mexico, 255 U.S. 367, 371, 41 S.Ct. 333, 334, 65 L.Ed. 680. 20 In the 1930's, however, dissatisfaction with the rather loose regime governing use and disposition of unappropriated federal lands, prompted mostly by the waste caused by unregulated stock grazing,15 led to a series of congressional and executive actions that are critical to this case. By means of these actions, all unappropriated federal lands were withdrawn from every form of entry or selection. The withdrawal did not affect the original school land grants in place, whether or not surveyed, but did include all lands then available for school indemnity selections. The lands thus withdrawn were thereafter available for indemnity selections only as permitted by the Secretary of the Interior in the exercise of his discretion. 21 The sequence of events was as follows. In 1934, Congress enacted the Taylor Grazing Act "[t]o stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range, and for other purposes." 48 Stat. 1269. Section 1 authorized the Secretary of the Interior to establish grazing districts in up to 80 million acres of unappropriated federal lands; the establishment of such a district had the effect of withdrawing all lands within its boundaries "from all forms of entry of settlement."16 That section also expressly provided that "Nothing in this Act shall be construed in any way . . . to affect any land heretofore or hereafter surveyed which, except for the provisions of this Act, would be a part of any grant to any State . . . ." Thus, § 1 preserved the original school land grants, whether or not the designated sections had already been identified by survey, but the statute made no provision for school indemnity selections.17 22 Because the Taylor Grazing Act as originally passed in 1934 applied to less than half of the federal lands in need of more orderly regulation,18 President Roosevelt promptly issued Executive Order No. 691019 withdrawing all of the unappropriated and unreserved public lands in 12 Western States, including Utah, from "settlement, location, sale or entry" pending a determination of the best use of the land. The withdrawal affected the land covered by the Taylor Grazing Act as well as land not covered by the statute. The President's authority to issue Executive Order No. 6910 was expressly conferred by the Pickett Act.20 23 Congress responded to Executive Order No. 6910 by amending the Taylor Grazing Act in 1936 in two respects that are relevant to this case. First, it expanded the acreage subject to the Act, see n. 18 supra. Second, it revised § 7 of the Act, see n. 17, supra, to give the Secretary the authority, in his discretion, to classify both lands within grazing districts and lands withdrawn by the recent Executive Order as proper not only for homesteading, but also, for the first time, for satisfaction of any outstanding "lieu" rights, and to open such lands to "selection." The section, thus amended, provided in pertinent part:21 24 "The Secretary of the Interior is authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order . . . or within a grazing district, which are . . . proper for acquisition in satisfaction of any outstanding lieu, exchange or script rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws. . . . Such lands shall not be subject to disposition . . . until after the same have been classified . . . ." (Emphasis added.) 25 The changes in this section were apparently prompted in part by the fact that while the Taylor Grazing Act withdrawal preserved the States' school grants in place, no provision had been made in the 1934 version for the States' indemnity selections from land within grazing districts even though the States had expressed the concern that "the establishment of a grazing district would restrict the State in its indemnity selections."22 While this omission may not have been critical in 1934 when the Act was passed—since only about half of the unappropriated federal land was then affected—by 1936, as a consequence of Executive Order No. 6910, no land at all was available in the public domain for indemnity selections. It is therefore reasonable to infer that the amendments to § 7 were at least in part a response to the complaint expressed in congressional hearings in 1935, that there was no land available under current law for indemnity selections.23 26 The 1936 amendment to § 7 rectified that problem, but did not give the States a completely free choice in making indemnity selections.24 Rather, Congress decided to route the States' selections through § 7, and thereby to condition their acceptance on the Secretary's discretion. That decision was consistent with the dominant purpose of both the Act and Executive Order No. 6910 to exert firm control over the Nation's land resources through the Department of the Interior. In sum, the Taylor Grazing Act, coupled with the withdrawals by Executive Order, "locked up" all of the federal lands in the Western States pending further action by Congress or the President, except as otherwise permitted in the discretion of the Secretary of the Interior for the limited purposes specified in § 7. 27 This was Congress' understanding of the Taylor Grazing Act in 1958 when it amended the school land indemnity selection statute to permit selection of mineral lands. Both the House and Senate Reports specifically noted and adopted the Department of the Interior's assumption " 'that nothing in this bill is intended to affect the rights or duties of States under other laws' and, in particular, 'that no change is intended to be made in section 7 of the Taylor Grazing Act, as amended (43 U.S.C., sec. 315f).' " H.R.Rep.No. 2347, 85th Cong., 2d Sess., 2 (1958).25 Since Congress was specifically dealing with school indemnity selections, the Reports make it perfectly clear that Congress deemed school indemnity selections to be subject to § 7 of the Taylor Grazing Act. And since the congressional decision in 1958 to allow school land indemnity selections to embrace mineral lands was expressly conditioned on a determination that the lost school lands were also mineral in character, it is manifest that Congress did not intend to grant the States any windfall. It only intended to restore to the States a rough approximation of what was lost. See n.14, supra. 28 We therefore hold that the 1936 amendment to the Taylor Grazing Act conferred on the Secretary the authority in his discretion to classify lands within a federal grazing district as proper for school indemnity selection. And we find no merit in the argument that the Secretary's "grossly disparate value" policy constitutes an abuse of the broad discretion thus conferred. On the contrary, that policy is wholly faithful to Congress' consistent purpose in providing for indemnity selections, to give the States a rough equivalent of the school land grants in place that were lost through pre-emption or private entry prior to survey. Accordingly, the judgment of the Court of Appeals is reversed. 29 It is so ordered. 30 Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, dissenting. 31 Since the early days of the Republic, the Federal Government's compact with each new State has granted the State land for the support of education and allowed the State to select land of equal acreage as indemnity for deficiencies in the original grant. Today, the Court holds that the Taylor Grazing Act abrogated those compacts by approving selection requirements completely at odds with the equal acreage principle. Nothing in the Court's opinion persuades me that Congress meant so lightly to breach compacts that it has respected and enforced throughout our Nation's history. I therefore dissent. 32 The Court's decision rests on three fundamental misconceptions. First, the Court reasons from the accepted proposition that indemnity lands compensate the States for gaps in the original grants to the mistaken conclusion that the States have no right to lands of equal acreage. Ante, at 507-510. This argument ignores the clear meaning of statutes spanning about two centuries in which Congress specifically adopted an equal acreage principle as the standard for making compensation. Second, the Court believes that the establishment of grazing districts under the Taylor Grazing Act has the same effect as a withdrawal of lands under the Pickett Act. Id., at 513-519. This belief manifests a serious misunderstanding of both the history of federal land management and the language of the Taylor Grazing Act. Third, the Court assumes—without discussion—that the Taylor Grazing Act gives the Secretary of the Interior discretion to reject indemnity selections under standards inconsistent with the criteria set out in the statutes authorizing the selections. Every federal court that has considered the Secretary's authority under the Taylor Grazing Act has rejected this assumption. 33 A correct understanding of this case requires careful examination of a labyrinth of compacts and statutes dating back to the early years of our national history. Part I of this opinion reviews the unbroken succession of laws that undercut the Court's construction of the school indemnity selection statutes. Part II explains the development of the Taylor Grazing Act and its relationship to the Executive Orders withdrawing land under the Pickett Act. Finally, through a detailed consideration of the Taylor Grazing Act's critical provisions, Part III demonstrates that the Act will not permit the construction that the Court has given it. 34 * When the first 13 States formed the Union, each State had sovereign authority over the lands within its borders. These lands provided a tax base for the support of education and other governmental functions. When settlers sought to carve the State of Ohio from the Northwest Territory in 1802, they encountered a different situation. Vast tracts within the boundaries of the proposed State belonged to the Federal Government. Thus, the new State's potential revenue base would be restricted severely unless the Federal Government waived its immunity from taxation.1 In order to place Ohio on an equal footing with the original States, Congress enacted a compromise drawn from the Land Ordinance of 17852 and the Northwest Ordinance of 1787.3 The compromise set a pattern followed in the admission of virtually every other State.4 Specific details varied from State to State, but the basic plan persisted. As consideration for each new State's pledge not to tax federal lands, Congress granted the State a fixed proportion of the lands within its borders for the support of public education. E. g., Act of Apr. 30, 1802, § 7, 2 Stat. 175 (Ohio); Act of Jan. 29, 1861, § 3, 12 Stat. 127-128 (Kansas); Act of July 16, 1894, §§ 3, 6, 28 Stat. 108-109 (Utah); see United States v. Morrison, 240 U.S. 192, 201, 36 S.Ct. 326, 329, 60 L.Ed. 599 (1916).5 35 These agreements were solemn bilateral compacts between each State and the Federal Government. See ante, at 507; United States v. Morrison, supra, at 201-202, 36 S.Ct. at 329; Cooper v. Roberts, 18 How. 173, 177-179, 15 L.Ed. 338 (1856). For its part, the Government granted the State specific sections of land within each township laid out by federal survey. The granted sections were specified by number to ensure that the State would receive a random cross section of the public land. Title to the sections vested in the State upon approval of the survey. United States v. Morrison, supra, 240 U.S., at 207, 212, 36 S.Ct., at 331, 333; Beecher v. Wetherby, 95 U.S. 517, 24 L.Ed. 440 (1877). Should these grants in place prove unavailable, the Federal Government promised to grant the State indemnity in other lands of equal acreage. In return, Congress required the State to memorialize its pledge not to tax federal lands "by ordinance irrevocable without the consent of the United States." E. g., Act of July 16, 1894, § 3, 28 Stat. 108 (Utah). Congress also imposed upon the State a binding and perpetual obligation to use the granted lands for the support of public education. All revenue from the sale or lease of the school grants was impressed with a trust in favor of the public schools. No State could divert school lands to other public uses without compensating the trust for the full market value of the interest taken. Lassen v. Arizona ex rel. Arizona Highway Dept., 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967); see Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295, 96 S.Ct. 910, 47 L.Ed.2d 1 (1976). 36 A long line of statutes dating from the early 1800's evidences Congress' consistent respect for the federal obligation to replace unavailable school sections with indemnity lands of equal acreage. See United States v. Morrison, supra, 240 U.S., at 201-202, 36 S.Ct., at 329. In 1826, the first general indemnity selection statute appropriated additional tracts to compensate the States for lands lost when fractional townships were found not to contain the numbered section originally granted. The statute directed the Secretary of the Treasury to select "out of any unappropriated public land" within the township where the section had been lost the "quantity" of land to which the State was entitled. Act of May 20, 1826, ch. 83, 4 Stat. 179. When private claims against unsurveyed public lands increased as the Nation moved west, Congress also acted to indemnify States for school sections occupied by settlers. The earliest statutes authorized officials in particular States or Territories to select "other lands to an equal amount . . . in lieu of [the] sections so occupied. . . . " E. g., Act of Mar. 2, 1853, § 20, 10 Stat. 179 (Washington Territory).6 37 In 1859, a second statute of general applicability appropriated "other lands of like quantity" to replace school sections pre-empted by prior settlement, "fractional in quantity," missing from a township, or lost "from any natural cause whatever." Act of Feb. 26, 1859, ch. 58, 11 Stat. 385. Although the statute incorporated by reference the selection provisions of the 1826 Act, a more particular statute passed on the same day expressly empowered local officials in one western county to make their own indemnity selection. Upon filing with the local federal register, the statute declared, "the land so selected shall . . . belong to the school fund . . . in all respects the same as other school lands . . . ." Act of Feb. 26, 1859, ch. 59, 11 Stat. 385 (Sarpy County, Neb.). 38 The general statutes of 1826 and 1859, consolidated and codified as §§ 2275 and 2276 in the Revised Statutes of 1874, underwent extensive revision in 1891. The resulting law appropriated additional land to replace school sections lost because they were mineral in character, included within a federal reservation, or "otherwise disposed of by the United States." In lieu of unavailable school sections, each State was entitled to such "other lands of equal acreage . . . [as] may be selected by said State . . . ." Act of Feb. 28, 1891, ch. 384, 26 Stat. 796. The States could make their indemnity selections from "any unappropriated, surveyed public lands, not mineral in character, within the State . . . ." Id., at 797. 39 The 1891 revision had at least four effects. First, it reaffirmed the States' unquestioned right to replace lost school sections with lands of equal acreage. Second, it removed the restriction that had limited indemnity selections to land within the township where the school section was unavailable. Third, it appeared to confirm this Court's earlier decision that school grants did not convey mineral lands to the States.7 Fourth, it expressly conformed the general indemnity selection statutes to the mid-19th-century enactments that gave certain States the right to make their own indemnity selections. Even where the earlier statutes gave a State the power of selection, however, it had become accepted practice for the State to submit its selections for the approval of the Secretary of the Interior.8 State Enabling Acts passed in 1889 and 1890 sanctioned the practice explicitly.9 The 1891 revision of the general indemnity selection laws did not mention the need for federal approval, but the inclusion of an approval requirement in the Utah Enabling Act passed three years later suggests that the revision authorized no departure from the accepted practice. See Act of July 16, 1894, § 6, 28 Stat. 109. 40 By the end of the 19th century, the States' right to select land of equal acreage in lieu of lost school sections had been established for nearly 100 years. The only unsettled question was whether the Secretary of the Interior had discretion to disapprove the selections. In Payne v. New Mexico, 255 U.S. 367, 41 S.Ct. 333, 65 L.Ed. 680 (1921), this Court resolved that question in the States' favor. New Mexico had selected alternative land in exchange for school sections lying within a national forest. Before the Secretary approved the selection, the grants in place were restored to the public domain. The Secretary found that the restoration of the grants in place defeated the basis for the exchange selection. The Court held, however, that equitable title to properly selected land vested in the State when the selection was filed. If the selection satisfied the requirement of the general school grant statutes, the Secretary had no power to annul the State's title. Id., at 370-371, 41 S.Ct., at 334-35. 41 Three weeks later, the Court made the same point even more emphatically in Wyoming v. United States, 255 U.S. 489, 41 S.Ct. 393, 65 L.Ed. 742 (1921). In that case, the land selected by Wyoming in exchange for a school section lying within a national forest later was withdrawn by the Federal Government "as possible oil land." Id., at 495, 41 S.Ct., at 394. The Court again concluded that equitable title to the chosen land vested in the State on the date the selection was filed. It was not, the Court said, 42 "as if the selection was merely a proposal by the State which the [federal] land officers could accept or reject. They had no such option to exercise . . . . The power confided to them was not that of granting or denying a privilege to the State, but of determining whether an existing privilege conferred by Congress had been lawfully exercised . . . ." Id., at 496, 41 S.Ct., at 394, 395. 43 In the years after Payne and Wyoming, Congress further expanded the States' rights to land for the support of public education. A 1927 statute declared that school grants were "to embrace numbered school sections mineral in character . . . ." Act of Jan. 25, 1927, § 1, 44 Stat., pt. 2, p. 1026. A 1958 amendment to the indemnity selection statutes, by then found in their present places as 43 U.S.C. §§ 851, 852, permitted States to select mineral lands as indemnity for lost school sections that were mineral in character. Act of Aug. 27, 1958, 72 Stat. 928. This provision reflected a congressional judgment that the ban on mineral land indemnity for lost mineral lands had denied the States the fair cross section of land values contemplated by the original numbered grants.10 Congress also found that a rule which kept the States from replacing nonmineral land with mineral land "amply protected" the federal interest in preventing a windfall to the States. Congress therefore declined to depart from the fundamental equal acreage principle accepted since 1802. H.R.Rep.No.2347, 85th Cong., 2d Sess., 2, 3-4 (1958). Indeed, Congress always has adhered to the equal acreage principle as its standard for just indemnification. As recently as 1966, when it amended 43 U.S.C. § 852 to allow indemnity selections from unsurveyed as well as surveyed public land, Congress rejected the Secretary of the Interior's proposal to import an "equal value concept" into the indemnity statutes. See Act of June 24, 1966, Pub.L.No.89-470, 80 Stat. 220; S.Rep.1213, 89th Cong., 2d Sess., 2, 4-5 (1966), U.S.Code Cong. & Admin.News 1966, p. 2323.11 II 44 The Utah Enabling Act of 1894 grants to the State four numbered sections within each township for the support of public education. If those sections "have been sold or otherwise disposed of" by the Federal Government, the Act—like other statutes of its kind—directs school grant indemnity lands "to be selected within said State in such manner as the legislature may provide, with the approval of the Secretary of the Interior . . . ." Act of July 16, 1894, § 6, 28 Stat. 109. In accordance with this direction, Utah has selected 194 tracts of mineral land as indemnity for lost school sections said to be mineral in character. Utah alleges that the tracts selected are unappropriated public land equal in acreage to the unavailable sections. Thus, the tracts appear to satisfy the basic indemnity selection requirements of 43 U.S.C. §§ 851, 852. 45 The Secretary, however, has refused to determine whether the selections satisfy the indemnity statutes. Instead, he claims that the Taylor Grazing Act of 1934, as amended, 43 U.S.C. § 315 et seq., gives him discretion to disapprove the selection of indemnity lands "where the value of those lands greatly exceeds the value of the lost school lands for which the State seeks indemnity." App. 61. The Court today agrees. In an unprecedented departure, the Court concludes that Congress intended the Taylor Grazing Act to abrogate the equal acreage principle that Congress has reaffirmed repeatedly since 1802. The conclusion is implausible on its face, and the Taylor Grazing Act belies it. A full review of the Act's history and structure shows that this land management legislation affects only the States' right to make land exchanges. Indeed, the language of the Act—analyzed more closely in Part III of this opinion—expressly protects the States' indemnity selection rights from any impairment whatever. 46 The Taylor Grazing Act was intended to protect the public lands from spoliation while providing for the orderly satisfaction of valid claims against them. By the mid-1930's, the public ranges in the Western States were seriously endangered. Overgrazing had destroyed the better grasses, erosion had bared the steep hillsides, and silt had filled the waterholes. Homesteading on the better watered grounds aggravated the situation by leaving other lands without access to water. Finally, the disastrous decline of livestock prices during the Great Depression drove stockmen to make even greater use of free grazing on the already depleted public domain.12 It was against this background that Congress in 1934 enacted the Taylor Grazing Act "to promote the highest use of the public lands pending its final disposal . . . ." § 1, 48 Stat. 1269. 47 Section 1 of the Act authorized the Secretary of the Interior "in his discretion, . . . to establish grazing districts . . . of vacant, unappropriated, and unreserved lands from any part of the public domain . . ., which in his opinion are chiefly valuable for grazing and raising forage corps . . . ." Ibid.13 Land noticed for inclusion within a grazing district was withdrawn from "all forms of entry [or] settlement" until hearings could be conducted. Id., at 1270. Congress carefully provided, however, that the Act was not to impede orderly disposition of the public lands. When some States objected to an earlier draft of the Act "upon the theory that the establishment of a grazing district would restrict [a] State in its indemnity selections," Congress recast § 1 to declare expressly that 48 "[n]othing in this Act shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands . . . except as otherwise expressly provided in this Act, nor to affect any land heretofore or hereafter surveyed which, except for the provisions of this Act, would be a part of any grant to any State . . . ." Id. at 1269.14 49 Section 7 also gave the Secretary discretion to reclassify land within a grazing district as "more valuable and suitable for the production of agricultural crops than native grasses and forage plants . . . ." Id., at 1272. Upon reclassification, such land again became "subject to settlement or occupation as homesteads . . . ." Ibid. 50 The Act contained critically important provisions for land exchanges. Section 8 authorized the Secretary to accept private and state land within a grazing district in exchange for any surveyed public land of no more than "equal value." Id., at 1272-1273. The section showed special solicitude for the States by directing the Secretary to proceed with state-initiated exchanges "at the earliest practicable date, and to cooperate fully with the State to that end. . . . " Id., at 1273. The Western States, however, objected to the discretionary exchange provisions. The Governor of Wyoming, for example, opposed the Act because he feared that § 8 would impair the State's right to exchange school sections isolated inside a federal reservation or a grazing district for other, better situated acreage. In testimony before the Senate Committee, he argued that the Secretary might not allow enough exchanges to permit the removal of state land from inside federally administered areas. The Governor therefore urged that the Act's exchange provisions should be mandatory.15 Testimony given by the Executive Secretary of the Utah Land Board expressed the same concerns.16 The State Land Commissioner of Arizona also suggested that the Act would prevent private citizens from exercising their legitimate rights against lands included in a grazing district.17 Although the Secretary argues that these witnesses opposed the Act because it impaired the States' right to make indemnity selections, nothing in their testimony supports that conclusion. Indeed, the testimony of all three witnesses is most remarkable for its failure to suggest that they thought the Taylor Grazing Act would interfere with school grant indemnity selections by the Western States. 51 Five months after the Act went into effect, President Roosevelt issued Executive Order No. 6910 (1934). Invoking his authority under the Pickett Act of 1910,18 the President withdrew all unreserved and unappropriated public lands in 12 Western States "from settlement, location, sale or entry . . . pending determination of the most useful purpose to which such land may be put. . . . " The effect of this Pickett Act withdrawal was far-reaching. Although homesteading and other activities continued under existing claims, new entries upon the public domain came to a halt. See 55 I.D. 205 (1935). The withdrawal also forestalled States and private citizens from exercising their exchange, scrip, or indemnity rights to appropriate public land. See State of Arizona, 55 I.D. 249, 253-254 (1935).19 52 Only months after the Order issued, the Senators from Arizona began hearings on a proposal to undercut the withdrawal by broadening the Secretary's powers under §§ 7 and 8 of the Taylor Grazing Act.20 The bill suffered a pocket veto, but an almost identical bill became law in 1936. Act of June 26, 1936, Title I, 49 Stat. 1976. In the meantime, Executive Order No. 7274 (1936) excluded from the operation of the earlier Order "all lands which are now, or may hereafter be, included within grazing districts. . . . " Thus, by the time the bill was enacted, the Pickett Act withdrawal had no further effect on lands administered under the Taylor Grazing Act.21 53 The 1936 enactment significantly amended §§ 7 and 8 of the Taylor Grazing Act. The amendment to § 7 authorized the Secretary of the Interior to classify lands withdrawn by Executive Order No. 6910 or "within a grazing district" as "more valuable or suitable" for uses other than grazing or as "proper for acquisition in satisfaction of any outstanding lieu, exchange or script [sic ] rights or land grant . . . ." 49 Stat. 1976.22 Such land would be open "to entry, selection, or location" under the applicable public land laws. The statute directed the Secretary to respond to an application for entry by classifying the subject land, but no lands were to be appropriated "until after the same have been classified and opened to entry . . . ." Ibid. 54 The amendment to § 8 made mandatory the Taylor Grazing Act's provisions for the exchange of state-owned land.23 Upon the receipt of any State's application for an exchange, the statute now provided, the Secretary "shall, and is hereby, directed to proceed with such exchange at the earliest practicable date and to cooperate fully with the State to that end . . . ." Id., at 1977. Furthermore, the Secretary was authorized to make exceptions to the equal value requirement that remained applicable to exchanges of private land. The federal land exchanged for state land could be "either of equal value or of equal acreage." Ibid. III 55 Two specific provisions of the Taylor Grazing Act are critical to the Court's resolution of this case. The Court first must demonstrate that § 1 of the Act, 43 U.S.C. § 315, does not exclude the State's school grant indemnity rights from the reach of the statute. The Court then must establish that § 7 of the Act, 43 U.S.C. § 315f, gives the Secretary of the Interior power to disapprove the selection of lands that satisfyall requirements of the school grant indemnity statutes, 43 U.S.C. §§ 851, 852. The Court fails to clear either hurdle because neither section of the Act permits the construction that the Court would give it. The plain language of § 1 protects school grant indemnity rights from the operation of the statute. And even if the Act applied to school grants, § 7 would not give the Secretary discretion to reject otherwise proper indemnity selections. A. 56 Section 1 of the Taylor Grazing Act provides that nothing in the statute shall "affect any land . . . which [otherwise] would be a part of any grant to any State . . . ." The exemption is transparently clear. All grants made by the compacts between the States and the Federal Government are completely unaffected by the Taylor Grazing Act. Thus, the establishment of a grazing district is not a federal "reservation" or "disposition" of land that can prevent title to numbered school sections from vesting in the States. See 43 U.S.C. § 851. Furthermore, designated grazing land remains "unappropriated" and available for the satisfaction of school grants under the terms of the indemnity statutes. See 43 U.S.C. §§ 852(a) and (d). The purpose of the Act is simply to provide that unsurveyed or unselected school land like other public land, can be included in grazing districts "[i]n order to promote [its] highest use . . . pending its final disposal." 43 U.S.C. § 315. 57 The Court gives the unqualified exemption in § 1 a construction that is inconsistent with its plain language and the stated purpose of the Act. The Court concedes that the inclusion of numbered school sections within a grazing district is not a federal disposition of the land that can defeat the grants in place. Ante, at 513.24 It holds, however, that the inclusion of other lands within a grazing district is a federal appropriation that can defeat a State's otherwise clear right to replace lost school sections with lands of equal acreage. Ante, at 519. Thus, the Court thinks the Taylor Grazing Act does "affect . . . land . . . which [otherwise] would be . . . part of" a grant to a State. Indeed, the Court concludes that the Act gives the Secretary of the Interior power to nullify an earlier congressional "disposal" of public land. This construction is wholly at odds with the express language and the clear history of the Act. B 58 Even if I could agree with the Court that § 1 of the Taylor Grazing Act exempts only numbered school sections from the operation of the Act, I could not agree with the Court's unexplained conclusion that § 7 allows the Secretary of the Interior to review school grant indemnity selections under a comparative value standard. Section 7 of the Act, 43 U.S.C. § 315f, gives the Secretary discretion to reclassify designated grazing lands as 59 "[i] more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants, or [ii] more valuable or suitable for any other use than for [grazing], or [iii] proper for acquisition in satisfaction of any outstanding lieu, exchange or script [sic ] rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws . . . ." 60 The Courts of Appeals have concluded that this section gives the Secretary substantial discretion to conserve the public lands. Thus, the Secretary may reject private applications for land that he finds suitable for more efficient uses. See Bleamaster v. Morton, 448 F.2d 1289 (CA9 1971); Carl v. Udall, 114 U.S.App.D.C. 33, 37-38, 309 F.2d 653, 657-658 (1962). The courts also have upheld administrative determinations that certain land is not proper for private acquisition because the relevant land grant did not convey lands of that character. See Pallin v. United States, 496 F.2d 27, 34-35 (CA9 1974); Finch v. United States, 387 F.2d 13, 15-16 (CA10 1967), cert. denied, 390 U.S. 1012, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968). But these federal courts agree that § 7 of the Taylor Grazing Act does not give the Secretary authority to review a land selection under standards fundamentally inconsistent with the terms of the relevant land grant statutes. See Pallin v. United States, supra; Bronken v. Morton, 473 F.2d 790, 795-796 (CA9), cert. denied, 414 U.S. 828, 94 S.Ct. 51, 38 L.Ed.2d 62 (1973); Finch v. United States, supra. The word "proper" in the third clause of § 7 quoted above cannot mean proper under whatever criteria the Secretary sees fit to devise. 61 Nothing in this general provision, concerned with the satisfaction of private as well as state claims, suggests that Congress intended to authorize a comparative value standard at odds with the equal acreage principle found in every school grant indemnity statute since the beginning of the 19th century. When a specific statute grants fixed acreages, the Secretary cannot defeat the grant by applying a comparative value test based on the general provisions of § 7. Bronken v. Morton, supra. This rule should apply with special force where the Federal Government has granted fixed quantities of land to a State as part of the bilateral compact under which the State was admitted to the Union. Even the exchange provisions in § 8 of the Taylor Grazing Act acknowledged the equal acreage principle. The section allowed the Secretary to accept private lands only in return for public lands of no more than "equal value," 43 U.S.C. § 315g(b) (1970 ed.), but it authorized him to take state-owned lands in exchange for "land either of equal value or of equal acreage," § 315g(c). Having expressly acknowledged the equal acreage principle in a section dealing with the exchange of lands to which the States already hold title, the Act could not silently have authorized departures from that principle in a section dealing with indemnity for deficiencies in the original land grants. 62 The Congress that passed the indemnity provision under which Utah has made its selections found that a law permitting the selection of mineral lands as indemnity for other mineral lands of equal acreage "amply protected" the federal interest. H.R.Rep.No. 2347, 85th Cong., 2d Sess., 2 (1958). The sponsors of the legislation and the Department of the Interior did not conclude—as the Court does—that such selections would allow the States to secure an unfair advantage. Instead, they agreed that the selection of mineral lands on an equal acreage basis was necessary to guarantee the public schools a "fair cross section of land values." Id., at 4 (report of the Department of the Interior); 104 Cong.Rec. 11921 (1958) (remarks of Sen. Watkins); see supra, at 527. No later Congress has receded from this view, despite the Secretary's invitation to do so. See S.Rep.No. 1213, 89th Cong., 2d Sess., 2, 4 (1966), U.S.Code Cong. & Admin.News 1966, p. 2323; supra, at 527-528. For nearly 180 years, Congress has adhered to the equal acreage principle embodied in the specific statutes most relevant to this case. The Court has no basis for surmising that a general statute addressed to different issues has given the Secretary authority to adopt an inconsistent position. IV 63 Utah has selected land in satisfaction of grants made to support the public education of its citizens. Those grants are part of the bilateral compact under which Utah was admitted to the Union. They guarantee the State a specific quantity of the public lands within its borders. Payne v. New Mexico, 255 U.S. 367, 41 S.Ct. 333, 65 L.Ed. 680 (1921), and Wyoming v. United States, 255 U.S. 489, 41 S.Ct. 393, 65 L.Ed. 742 (1921), require the Secretary of the Interior to approve Utah's indemnity selections if they designate tracts equal in acreage to the lands replaced and otherwise satisfy the requirements of 43 U.S.C. §§ 851, 852. Nothing in the Taylor Grazing Act empowers the Secretary to review Utah's selections under a comparative value standard explicitly at odds with principles consistently respected since the early days of our Republic. 64 For a decade or longer, however, the Secretary has refused to determine whether Utah's selections satisfy §§ 851 and 852. Indeed, he has refused to make any determination at all. Rather, the Secretary has claimed that the Taylor Grazing Act gives him discretion to disapprove the selection of indemnity lands more valuable than Utah's lost school sections. In the five years since Utah took issue with that claim, the registry of the District Court has swollen with the proceeds of oil shale leases on the selected land—proceeds which the Federal Government now claims on the ground that the Secretary has not approved the indemnity selections. The District Court brought this matter to a just conclusion. It ordered the Secretary to do his duty. The Court of Appeals affirmed, and I would affirm its judgment. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 That upon the admission of said State [Utah] into the Union, sections numbered two, sixteen, thirty-two, and thirty-six in every township of said proposed State, and where such sections or any parts thereof have been sold or otherwise disposed of by or under the authority of any Act of Congress other lands equivalent thereto, in legal subdivisions of not less than one quarter section and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said State for the support of common schools, such indemnity lands to be selected within said State in such manner as the legislature may provide, with the approval of the Secretary of the Interior: Provided, That the second, sixteenth, thirty-second, and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this Act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this Act until the reservation shall have been extinguished and such lands be restored to and become a part of the public domain." 28 Stat. 109 (emphasis added). 2 The District Court found that as of May 25, 1976, $48,291,840 had been accumulated. App. to Pet. for cert. 62a. It should be noted that these proceeds were derived from only 10,240 acres out of the total area selected comprising over 157,000 acres. 3 Suggested guidelines of the Department of the Interior provide that the policy will not be applied unless the estimated value of the selected lands exceeds that of the base lands by more than $100 per acre or 25% whichever is greater. If the values are grossly disparate using those criteria, the case will be submitted to the Washington office for evaluation of all the circumstances. App. 44-45. 4 Letter of February 14, 1974, from Rogers Morton, Secretary of the Interior, to Calvin Rampton, Governor of the State of Utah. Id., at 61. 5 The statute provides, in part: "§ 851. Deficiencies in grants to State by reason of settlements, etc., on designated sections generally. "Where settlements with a view to preemption or homestead have been, or shall hereafter be made, before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such sections or either of them have been or shall be granted, reserved, or pledged for the use of schools or colleges in the State in which they lie, other lands of equal acreage are hereby appropriated and granted, and may be selected, in accordance with the provisions of section 852 of this title, by said State, in lieu of such as may be thus taken by preemption or homestead settlers. And other lands of equal acreage are also hereby appropriated and granted and may be selected, in accordance with the provisions of section 852 of this title, by said State where sections sixteen or thirty-six are, before title could pass to the State, included within any Indian, military, or other reservation, or are, before title could pass to the State, otherwise disposed of by the United States: Provided, That the selection of any lands under this section in lieu of sections granted or reserved to a State shall be a waiver by the State of its right to the granted or reserved sections. And other lands of equal acreage are also appropriated and granted, and may be selected, in accordance with the provisions of section 852 of this title, by said State to compensate deficiencies for school purposes, where sections sixteen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever. And it shall be the duty of the Secretary of the Interior, without awaiting the extension of the public surveys, to ascertain and determine, by protraction or otherwise, the number of townships that will be included within such Indian, military, or other reservations, and thereupon the State shall be entitled to select indemnity lands to the extent of section for section in lieu of sections therein which have been or shall be granted, reserved, or pledged; but such selections may not be made within the boundaries of said reservation: Provided, however, That nothing in this section contained shall prevent any State from awaiting the extinguishment of any such military, Indian, or other reservation and the restoration of the lands therein embraced to the public domain and then taking the sections sixteen and thirty-six in place therein." 43 U.S.C. § 851. * * * * * "§ 852. Selections to supply deficiencies of school lands "(a) [Restrictions] "The lands appropriated by section 851 of this title shall be selected from any unappropriated, surveyed or unsurveyed public lands within the State where such losses or deficiencies occur subject to the following restrictions: "(1) No lands mineral in character may be selected by a State except to the extent that the selection is being made as indemnity for mineral lands lost to the State because of appropriation before title could pass to the State; "(2) No lands on a known geologic structure of a producing oil or gas field may be selected except to the extent that the selection is being made as indemnity for lands on such a structure lost to the State because of appropriation before title could pass to the State; and "(3) Land subject to a mineral lease or permit may be selected if none of the land subject to that lease or permit is in a producing or producible status, subject, however, to the restrictions and conditions of the preceding and following paragraphs of this subsection." § 852(a). Title 43 U.S.C. § 853 provides that in applying this statute to Utah, the words "sections sixteen and thirty-six" also include sections two and thirty-two. 6 "Because the western states are the ones most recently admitted to the Union and because Utah and Arizona are two of the three states that received particularly large grants, the remaining indemnity selection rights are concentrated in seven western states. Utah and Arizona alone hold nearly 70% of the outstanding indemnity rights. The approximate number of acres still to be selected in each state (and thus the approximate number of acres potentially affected by this lawsuit) is as follows: Arizona, 170,000 acres; California, 108,000 acres; Colorado, 17,000 acres; Idaho, 27,000 acres; Montana, 22,900 acres; Utah, 225,000 acres; and Wyoming, 1,100 acres." Brief for Petitioner 4-5, n.2. 7 "The first enactment for the sale of public lands in the western territory provided for setting apart section sixteen of every township for the maintenance of public schools (Ordinance of 1785; Cooper v. Roberts, 18 How. 173, 177 [, 15 L.Ed. 338, 339]); and, in carrying out this policy, grants were made for common school purposes to each of the public-land States admitted to the Union. Between the years 1802 and 1846 the grants were of every section sixteen, and, thereafter, of sections sixteen and thirty-six. In some instances, additional sections have been granted." United States v. Morrison, 240 U.S. 192, 198, 36 S.Ct. 326, 328, 60 L.Ed. 599 (footnotes omitted). 8 "It has consistently been held that under the terms of the grants hitherto considered by this Court, title to unsurveyed sections of the public lands which have been designated as school lands does not pass to the State upon its admission into the Union, but remains in the Federal Government until the land is surveyed. Prior to survey, those sections are a part of the public lands of the United States and may be disposed of by the Government in any manner and for any purpose consistent with applicable federal statutes. If upon survey it is found that the Federal Government has made a previous disposition of the section, the State is then entitled to select lieu lands as indemnity in accordance with provisions incorporated into each of the school-land grants. The interest of the State vests at the date of its admission into the Union only as to those sections which are surveyed at that time and which previously have not been disposed of by the Federal Government." United States v. Wyoming, 331 U.S. 440, 443-444, 67 S.Ct. 1319, 1321-1322, 91 L.Ed. 1590 (footnote omitted). 9 These include the establishment of reservations for Indians or federal military purposes, and entries by individuals under the homestead laws. See e. g., Wisconsin v. Lane, 245 U.S. 427, 432-433, 38 S.Ct. 135, 136-37, 62 L.Ed. 377. 10 See Heydenfeldt v. Daney Gold & Silver Mining Co., 93 U.S. 634, 639-640, 23 L.Ed. 995: "Until the status of the lands was fixed by a survey, and they were capable of identification, Congress reserved absolute power over them; and if in exercising it the whole or any part of a 16th or 36th section had been disposed of, the State was to be compensated by other lands equal in quantity, and as near as may be in quality." (Emphasis added.) 11 Under the 1891 general indemnity selection statute then in effect, selections were limited to "unappropriated, surveyed public lands, not mineral in character." 26 Stat. 796-797. 12 The Act of January 25, 1927, 44 Stat. 1026-1027, provided that "the several grants to the States of numbered sections in place for the support or in aid of common or public schools be, and they are hereby, extended to embrace numbered school sections mineral in character." See 43 U.S.C. § 870. 13 "[T]his Act shall not apply to indemnity or lieu selections or exchanges or the right hereafter to select indemnity for numbered school sections in place lost to the State under the provisions of this or other Acts, and all existing laws governing such grants and indemnity or lieu selections and exchanges are hereby continued in full force and effect." 44 Stat. 1027, 43 U.S.C. § 871. 14 "Under present law the States are restricted to selecting non-mineral lands to replace forfeited school sections even when these sections are mineralized. There appears to be little equity in this situation." H.R.Rep.No.2347, 85th Cong., 2d Sess., 2 (1958). "The objective of this legislation is merely to make whole the States which have pending in lieu selections of lands for preempted school sections." Remarks of Senator Watkins of Utah, 104 Cong.Rec. 11921 (1958). 15 See H.R.Rep.No.903, 73d Cong., 2d Sess. (1934); 78 Cong.Rec. 11139 (1934) (remarks of Sen. Adams of Colorado). 16 "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in order to promote the highest use of the public lands pending its final disposal, the Secretary of the Interior is authorized, in his discretion, by order to establish grazing districts or additions thereto and/or to modify the boundaries thereof, not exceeding in the aggregate an area of eighty million acres of vacant, unappropriated, and unreserved lands from any part of the public domain of the United States (exclusive of Alaska), which are not in national forests, national parks and monuments, Indian reservations, revested Oregon and California Railroad grant lands, or revested Coos Bay Wagon Road grant lands, and which in his opinion are chiefly valuable for grazing and raising forage crops: Provided, That no lands withdrawn or reserved for any other purpose shall be included in any such district except with the approval of the head of the department having jurisdiction thereof. Nothing in this Act shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands, and which is maintained pursuant to such law except as otherwise expressly provided in this Act, nor to affect any land heretofore or hereafter surveyed which, except for the provisions of this Act, would be a part of any grant to any State, nor as limiting or restricting the power or authority of any State as to matters within its jurisdiction. Whenever any grazing district is established pursuant to this Act, the Secretary shall grant to owners of land adjacent to such district, upon application of any such owner, such rights-of-way over the lands included in such district for stock-driving purposes as may be necessary for the convenient access by any such owner to marketing facilities or to lands not within such district owned by such person or upon which such person has stock-grazing rights. Neither this Act nor the Act of December 29, 1916 (39 Stat. 862; U.S.C., title 43, secs. 291 and following), commonly known as the 'Stock Raising Homestead Act', shall be construed as limiting the authority or policy of Congress or the President to include in national forests public lands of the character described in section 24 of the Act of March 3, 1891 (26 Stat. 1103; U.S.C., title 16, sec. 471), as amended, for the purposes set forth in the Act of June 4, 1897 (30 Stat. 35; U.S.C., title 16, sec. 475), or such other purposes as Congress may specify. Before grazing districts are created in any State as herein provided, a hearing shall be held in the State, after public notice thereof shall have been given, at such location convenient for the attendance of State officials, and the settlers, residents, and livestock owners of the vicinity, as may be determined by the Secretary of the Interior. No such district shall be established until the expiration of ninety days after such notice shall have been given, nor until twenty days after such hearing shall be held: Provided, however, That the publication of such notice shall have the effect of withdrawing all public lands within the exterior boundary of such proposed grazing districts from all forms of entry of settlement. Nothing in this Act shall be construed as in any way altering or restricting the right to hunt or fish within a grazing district in accordance with the laws of the United States or of any State, or as vesting in any permittee any right whatsoever to interfere with hunting or fishing within a grazing district." 48 Stat. 1269-1270. 17 Section 7 of the Act authorized the Secretary ". . . in his discretion, to examine and classify any lands within such grazing districts which are more valuable and suitable for the production of agricultural crops than native grasses and forage plants, and to open such lands to homestead entry in tracts not exceeding three hundred and twenty acres in area. Such lands shall not be subject to settlement or occupation as homesteads until after same have been classified and opened to entry after notice to the permittee by the Secretary of the Interior, and the lands shall remain a part of the grazing district until patents are issued therefor, the homesteader to be, after his entry is allowed, entitled to the possession and use thereof: Provided, That upon the application of any person qualified to make homestead entry under the public-land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract not exceeding three hundred and twenty acres in any grazing district to be classified, and such application shall entitle the applicant to a preference right to enter such lands when opened to entry as herein provided." 48 Stat. 1272. 18 The bill originally introduced by Congressman Taylor in 1934 (H.R.6462, 73d Cong., 2d Sess.) purported to authorize the protection of 173 million acres of public range lands by including them within grazing districts. As enacted, however, the statute covered a maximum of 80 million acres. This figure was increased to 142 million acres in 1936, 49 Stat. 1976, and the acreage limitation was removed entirely in 1954. 68 Stat. 151. 19 The Order, quoted in Executive Withdrawal Order, 55 I.D. 205, 206-207 (1935), reads as follows: "WHEREAS, the act of June 28, 1934 (ch. 865, 48 Stat. 1269), provides, among other things, for the prevention of injury to the public grazing lands by overgrazing and soil deterioration; provides for the orderly use, improvement and development of such lands; and provides for the stabilization of the livestock industry dependent upon the public range; and "WHEREAS, in furtherance of its purposes, said act provides for the creation of grazing districts to include an aggregate area of not more than eighty million acres of vacant, unreserved and unappropriated lands from any part of the public domain of the United states; provides for the exchange of State owned and privately owned lands for unreserved, surveyed public lands of the United States; provides for the sale of isolated or disconnected tracts of the public domain; and provides for the leasing for grazing purposes of isolated or disconnected tracts of vacant, unreserved and unappropriated lands of the public domain; and "WHEREAS, said act provides that the President of the United States may order that unappropriated public lands be placed under national forest administration, if, in his opinion, the land be best adapted thereto; and "WHEREAS, said act provides for the use of public land for the conservation or propagation of wild life; and "WHEREAS, I find and declare that it is necessary to classify all of the vacant, unreserved and unappropriated lands of the public domain within certain States for the purpose of effective administration of the provisions of said act; "NOW, THEREFORE, by virtue of and pursuant to the authority vested in me by the act of June 25, 1910 (ch. 421, 36 Stat. 847), as amended by the act of August 24, 1912 (ch. 369, 37 Stat. 497), and subject to the conditions therein expressed, it is ordered that all of the vacant, unreserved, and unappropriated public land in the States of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, and Wyoming be, and it hereby is, temporarily withdrawn from settlement, location, sale or entry, and reserved for classification, and pending determination of the most useful purpose to which such land may be put in consideration of the provisions of said act of June 28, 1934, and for conservation and development of natural resources. "The withdrawal hereby effected is subject to existing valid rights. "This order shall continue in full force and effect unless and until revoked by the President or by act of Congress." 20 In that Act, passed in 1910, Congress gave the President the authority to withdraw any public lands from "settlement, location, sale or entry": "[T]he President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States . . . and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress." Ch. 421, 36 Stat. 847. Although the description of the withdrawal power does not specifically mention state indemnity selections, the power as described is so broad and general that it seems clear that had such an exception been intended, Congress would have made it express. In Wyoming v. United States, 255 U.S. 489, 41 S.Ct. 393, 65 L.Ed. 742, this Court plainly indicated that an executive withdrawal of federal land under the Pickett Act would defeat a later attempt to select any part of such land as indemnity for lost school sections. The holding in the case was that an indemnity selection's validity should be tested as of the time made, and that a subsequent Pickett Act withdrawal could not defeat an earlier selection by the State that was otherwise valid. If a Pickett Act withdrawal could not preclude a school land indemnity selection, there would have been no need for the Court to reach the timeliness issue. The Pickett Act was repealed by the Federal Land Policy and Management Act of 1976, § 704(a), 90 Stat. 2792, but all previous withdrawals under the Pickett Act were expressly preserved unless and until modified. § 701(c), 90 Stat. 2786. In January 1936, President Roosevelt issued Executive Order No. 7274, which excluded from the operation of Executive Order No. 6910 lands which were then or which were thereafter placed within federal grazing districts. Once land was placed within a grazing district, the purpose of Order No. 6910 was, of course, satisfied. 21 Section 7 of the Act, 48 Stat. 1272, as amended by the Act of June 26, 1936, § 2, 49 Stat. 1976, as set forth in 43 U.S.C. § 315f, reads in its entirety as follows: "The Secretary of the Interior is authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order of November 26, 1934 (numbered 6910), and amendments thereto, and Executive order of February 5, 1935 (numbered 6964), or within a grazing district, which are more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under this subchapter or proper for acquisition in satisfaction of any outstanding lieu, exchange or script rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws, except that homestead entries shall not be allowed for tracts exceeding three hundred and twenty acres in area. Such lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry: Provided, That locations and entries under the mining laws including the Act of February 25, 1920, as amended, may be made upon such withdrawn and reserved areas without regard to classification and without restrictions or limitation by any provision of this subchapter. Where such lands are located within grazing districts reasonable notice shall be given by the Secretary of the Interior to any grazing permittee of such lands. The applicant, after his entry, selection, or location is allowed, shall be entitled to the possession and use of such lands: Provided, That upon the application of any applicant qualified to make entry, selection, or location, under the public-land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract to be classified, and such application, if allowed by the Secretary of the Interior, shall entitle the applicant to a preference right to enter, select, or locate such lands if opened to entry as herein provided." 22 Letter of Fred W. Johnson, Commissioner of the General Land Office, Department of the Interior, reprinted in H.R.Rep.No. 903, 73d Cong., 2d Sess., 9 (1934). 23 See statement of John H. Page of Phoenix, Ariz.: "[T]oo much thought in all of the hearings on the act was given to the grazing features, and very little attention was given to the mechanics and as to how it would affect all of the public-land laws that we have been functioning under. The result is that we are now tied up in just one general withdrawal of all public lands, and everything in the public-land structure and in all of the public-land laws and the contractual relations between the Government—and I refer to existing exchange acts and everything—they have all ceased to function. "There is no land that can be acquired, there is no land that can be filed on for any purpose. "I think all of you Senators will agree with me that there are other uses of the remaining public lands besides grazing. I term it generally to distinguish it from grazing, the use for industrial purposes; in other words, in Arizona a great many of our town sites or smelter sites and the like; those which have everything to do with industry, the title usually has been acquired by exchange selection, scrip, State selections. . . . * * * * * "When this bill was before Congress, I wrote our Senators and a great many of us did from Arizona, that we were all in sympathy with the grazing use, but that our fear was that they would get a little too enthusiastic about it and withdraw everything. In other words, I forecasted what has resulted, and I think in some measure that I was responsible for the 80,000,000-acre limitation that was put in. You remember that, Senator Hayden. "That was just so that they would have to take the land that was suitable and not include everything. But then there was immediately, when it commenced to be administered, a general withdrawal of all remaining public lands." Hearing on S. 2539 before the Senate Committee on Public Lands and Surveys, 74th Cong., 1st Sess., 3 (1935). That it was understood that no land was available for the States' school land indemnity selections was confirmed by Senator Hayden at the same hearings. In response to Mr. Page's observation that there was no land open to entry in Arizona for exercise of railroad-grant exchange rights, the Senator observed: "The same thing would be true of a grant made to a State for university purposes or an indemnity selection." Id., at 15. Further, it was the clear position of the Interior Department in 1935 that all of the land withdrawn under President Roosevelt's Executive Order No. 6910 was unavailable for school land indemnity selections. See State of Arizona, 55 I.D. 249, 253 (1935): "The law provides that indemnity lands may be taken for the school sections lost, but through the withdrawal of all public lands, there is no indemnity land to be obtained." 24 Utah argues (see also dissenting opinion, post, at 530, and n. 14) that the word "grant" in § 1 of the Taylor Grazing Act in the phrase, "[n]othing in this Act shall be construed in any way . . . to affect any LAND . . . WHICH . . . [is] part of any grant to any state," includes not only grants in place but also the right to indemnity selections. If Utah's construction of the language were correct, there would have been no need to amend § 7 to authorize indemnity selections. Moreover, even if indemnity selections were contemplated by that phrase in § 1, the 1936 amendment to § 7 still requires that the lands selected first be reclassified by the Secretary in his discretion. 25 S.Rep.No. 1735, 85th Cong., 2d Sess., 2 (1958): "Reports of the Secretary of the Interior on S. 2517 and H.R. 12117 [which contained the language just quoted from the House Report] are incorporated as a part of this report." 1 Congress did not address this problem in 1796 when Tennessee was created from land that North Carolina had ceded to the Confederation. Consequently, Tennessee contested congressional control over all vacant land within the State. The controversy ended with a compromise that established a federal reservation exempt from state taxation. Act of Apr. 18, 1806, ch. 31, §§ 1, 2, 2 Stat. 381-382; see P. Gates, History of Public Land Law Development 287-288 (1968). 2 The Land Ordinance of 1785 "reserved the lot No. 16, of every township, for the maintenance of public schools within the said township. . . . " 1 Laws of the United States 565 (1815). 3 Article III of the Northwest Ordinance of 1787 declared: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." 1 Stat. 52. Article IV provided that legislatures established in the region could not "tax . . . the property of the United States" or interfere with the Federal Government's disposal of the public lands. Ibid. 4 The pattern established by the Ohio Enabling Acts, Act of Mar. 3, 1803, 2 Stat. 225; Act of Apr. 30, 1802, § 7, 2 Stat. 175, was followed in the Acts organizing every State except Maine, Texas, West Virginia, and Hawaii. See P. Gates, supra n. 1, at 285-339. 5 Until shortly after Congress stopped selling public land on credit, Act of Apr. 24, 1820, § 2, 3 Stat. 566, State Enabling Acts also exempted land sold by Congress from state taxation for a period of five years after the sale. The Acts enabling the organization of Ohio and other States in the Northwest Territory contained only this proscription because the Northwest Ordinance of 1787 already banned state taxes on federal lands. See P. Gates, supra n. 1, at 288-296; n. 3, supra. 6 See Act of Mar. 3, 1853, § 7, 10 Stat. 247 (California); Act of Jan. 7, 1853, ch. 6, 10 Stat. 150 (Oregon). 7 Mining Co. v. Consolidated Mining Co., 102 U.S. 167, 26 L.Ed. 126 (1880); see United States v. Sweet, 245 U.S. 563, 570-572, 38 S.Ct. 193, 194-95, 62 L.Ed. 473 (1918). 8 See Todd v. Washington, 24 L.D. 106 (1897). The Secretary of the Interior assumed the Secretary of the Treasury's responsibility for the public lands in 1849. Act of Mar. 3, 1849, § 3, 9 Stat. 395. 9 See Act of July 10, 1890, § 4, 26 Stat. 223 (Wyoming); Act of July 3, 1890, § 4, 26 Stat. 215 (Idaho); Act of Feb. 22, 1889, § 10, 25 Stat. 679 (North Dakota, South Dakota, Montana, Washington). 10 See 104 Cong.Rec. 11921 (1958) (remarks of Sen. Watkins of Utah, cosponsor of the bill). 11 The Court points to nothing in nearly two centuries of American history to support its statement that the Secretary's comparative value concept is "wholly faithful to Congress' consistent purpose in providing for indemnity selections, to give the States a rough equivalent of the school grants in place that were lost . . . ." Ante, at 520. 12 See generally P. Gates, supra n. 1, at 519-529, 607-613. 13 The Taylor Grazing Act further provided that the land included within grazing districts could not aggregate more than 80 million acres. § 1, 48 Stat. 1269. The acreage limitation rose to 142 million acres in 1936, Act of June 26, 1936, Title I, § 1, 49 Stat. 1976, and it disappeared entirely in 1954, Act of May 28, 1954, § 2, 68 Stat. 151. 14 The last part of the provision was added to the statute by the House Committee on the Public Lands. See Hearings on H.R. 2835 and H.R. 6462 before the House Committee on the Public Lands, 73d Cong., 1st Sess. and 2d Sess., 195 (1934). At the time the language was inserted, the Committee had before it a report from the Secretary of the Interior indicating that some States had objected to the bill "upon the theory that the establishment of a grazing district would restrict the State in its indemnity selections." Id., at 5 (memorandum from General Land Office Commissioner Johnson to Secretary Ickes); see H.R.Rep. No. 903, 73d Cong., 2d Sess., 9 (1934); S.Rep. No. 1182, 73d Cong.2d Sess., 7 (1934). The Senate further expanded the exemption. See 78 Cong.Rec. 11147 (1934); Hearings on H.R. 6462 before the Senate Committee on Public Lands and Surveys 73d Cong., 2d Sess., 64 (1934). The House conferees acceded to the Senate amendment, after inserting the phrase "validly affecting the public lands" behind the words "existing law." See H.R.Conf.Rep. No. 2050, 73d Cong., 2d Sess., 1, 4 (1934). The Court simply ignores this highly relevant sequence of events. It even cites the Secretary's report on the States' concern for the plainly erroneous proposition that the original Act made "no provision . . . for the States' indemnity selections from land within grazing districts . . . ." Ante, at 517. Perhaps the Court's confusion arises from its assumption that the broad saving provision covers only lands specifically granted, rather than all lands needed for satisfaction of a grant. Ante, at 519, n. 24. This assumption is logically untenable. Lands selected in lieu of deficiencies in a grant cannot be conveyed to the grantee unless they become "part of [the] grant." 48 Stat. 1269. 15 Hearings on H.R. 6462 before the Senate Committee on Public Lands and Surveys, 73d Cong., 2d Sess., 195-209 (1934) (testimony of Gov. Miller of Wyo.). 16 Id., at 209-216 (testimony of George Fisher). Not until Congress amended the Taylor Grazing Act in 1936 was the Secretary of the Interior required to effect exchanges of state-owned lands. See infra, at 534. 17 Hearings on H.R. 6462, supra, at 161-174 (testimony of Howland J. Smith). 18 The Pickett Act of 1910, ch. 421, 36 Stat. 847, authorized the President temporarily to "withdraw from settlement, location, sale, or entry any of the public lands of the United States . . ., and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes . . . ." The Act was repealed by the Federal Land Policy and Management Act of 1976, § 704(a), 90 Stat. 2792. 19 This Court later held that a Pickett Act withdrawal is a "previous disposition" of land by the Federal Government that prevents title to numbered school sections from vesting in the States upon completion of a survey. United States v. Wyoming, 331 U.S. 440, 443-444, 454, 67 S.Ct. 1319, 1321-22, 1326, 91 L.Ed. 1590 (1947). Executive Order No. 7599, 2 Fed.Reg. 633 (1937), however, expressly exempted numbered school sections from the operation of Executive Order No. 6910. 20 See Hearings on S. 2539 before the Senate Committee on Public Lands and Surveys, 74th Cong., 1st Sess., 1-2 (1935). See also S.Rep.No. 1005, 74th Cong., 1st Sess., 2 (1935). Five days after the hearings began, the President limited his earlier withdrawal by amending Executive Order No. 6910 to authorize exchanges of land under § 8 of the Taylor Grazing Act. Exec. Order No. 7048 (1935). Participants in the congressional hearings accurately observed, however, that Executive Order No. 6910 had left no land available for school grant indemnity selection. See ante, at 518-519, n. 23; supra, at 532. 21 The Court scarcely mentions Executive Order No. 7274. It therefore fails to recognize that the land within a grazing district is "locked up" only to the extent that the Taylor Grazing Act affirmatively precludes otherwise legitimate claims against it. See ante, at 519. Any implication that the Pickett Act continues to affect lands within a grazing district is simply mistaken. See ante, at 515-516, n. 20; n. 24, infra. 22 The Senate Report on this amendment says that it was intended "to provide a more practicable and satisfactory method of classification of lands within a grazing district and to make available for private entry lands which are more valuable for other purposes than grazing." S.Rep.No. 2371, 74th Cong., 2d Sess., 2 (1936) (emphasis added). The legislative history provides no support for the Court's inference that the amendment was a response to complaints about the effect of the Taylor Grazing Act—as distinguished from Executive Order No. 6910—upon state indemnity selections. See ante, at 517-518, n. 24. 23 See S.Rep. No. 2371, 74th Cong., 2d Sess., 2 (1936). Mandatory exchanges were critically important to the Western States. See supra, at 531-532. 24 Given the Court's concession on this point, its reliance on United States v. Wyoming, 331 U.S. 440, 67 S.Ct. 1319, 91 L.Ed. 1590 (1947), is misplaced. Ante, at 515, n. 20; see supra, at 533, and n. 21. In that case, the United States sought to quiet title to oil land lying within one of the State's numbered school sections. The land had been withdrawn under the Pickett Act of 1910, ch. 421, 36 Stat. 847, several months before a survey identified it as a school section. The Court held that the Pickett Act withdrawal was a "previous disposition" by the Federal Government that prevented title to the school section from vesting in the State upon completion of the survey. 331 U.S., at 433-444, 454, 67 S.Ct., at 1321-22, 1326. Since the Taylor Grazing Act unlike the Pickett Act—does not "dispose" of otherwise unreserved public lands, United States v. Wyoming provides no support for the notion that the Act withdrew grazing lands from indemnity selection under the provisions of the State Enabling Acts and the school indemnity statutes.

78

446 U.S. 578 100 S.Ct. 1889 64 L.Ed.2d 525 Adlene HARRISON, etc., et al., Petitioners,v.PPG INDUSTRIES, INC., et al. No. 78-1918. Argued Jan. 16, 1980. Decided May 27, 1980. Syllabus As authorized by the Clean Air Act (Act), the Environmental Protection Agency (EPA) decided, on the basis of correspondence with respondents, that certain equipment at a power generating facility of respondent PPG Industries, Inc. (PPG), was subject to certain "new source" performance standards regarding air pollution that had been promulgated by the EPA Administrator. PPG then filed a petition in the Court of Appeals for review of the EPA's decision under § 307(b)(1) of the Act, which provides for direct review in a federal court of appeals of certain locally and regionally applicable actions taken by the Administrator under specifically enumerated provisions of the Act, and of "any other final action of the Administrator under [the] Act . . . which is locally or regionally applicable." Because of its uncertainty as to the proper forum for judicial review, PPG also filed suit for injunctive relief against the Administrator in a Federal District Court, which suit was stayed pending the disposition of the present case. The Court of Appeals dismissed PPG's petition for lack of jurisdiction under § 307(b)(1). Held: The phrase "any other final action" in § 307(b)(1) is to be construed in accordance with its literal meaning so as to reach any action of the Administrator that is final, not just final actions of the Administrator similar to actions under the specifically enumerated provisions that precede the catch all phrase in the statute. Pp. 586-594. (a) The rule of ejusdem generis does not apply to § 307(b)(1) so as to limit "any other final action" to actions similar to those under the specifically enumerated provisions on the theory that the latter actions (unlike the Administrator's informal decision here) must be based on administrative proceedings reflecting at least notice and opportunity for a hearing. At least one of the specifically enumerated provisions in § 307(b)(1) does not require the Administrator to act only after notice and opportunity for a hearing, and thus even if the rule of ejusdem generis were applied, it would not significantly narrow the ambit of "any other final action" under § 307(b)(1). Moreover, the rule of ejusdem generis is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty, and the phrase "any other final action" offers no indication whatever that Congress intended such a limiting construction of § 307(b)(1). Pp. 587-589. (b) Nothing in the legislative history supports a conclusion that the phrase "any other final action" in § 307(b)(1) means anything other than what it says, or that Congress did not intend the phrase to enlarge the jurisdiction of the courts of appeals to include the review of cases based on an administrative record reflecting less than notice and an opportunity for a hearing. Pp. 589-592. (c) The argument that, as a matter of policy, the basic purpose of § 307(b)(1)—to provide prompt pre-enforcement review of EPA action—would be better served by providing in cases such as this for review in a district court rather than a court of appeals, is an argument to be addressed to Congress, not to this Court. Pp. 592-594. 5 Cir., 587 F.2d 237, reversed and remanded. Maryann Walsh, Washington, D. C., for petitioners. Charles F. Lettow, Washington, D. C., for respondents. Mr. Justice STEWART delivered the opinion of the Court. 1 Section 307(b)(1) of the Clean Air Act (Act) provides for direct review in a federal court of appeals of certain locally and regionally applicable actions taken by the Administrator of the Environmental Protection Agency (EPA) under specifically enumerated provisions of the Act, and of "any other final action of the Administrator under [the Act] . . . which is locally or regionally applicable." (Emphasis added.)1 The issue in this case is whether the Court of Appeals for the Fifth Circuit was correct in concluding that it was without jurisdiction under § 307(b)(1) to entertain a petition for review in which PPG Industries, Inc. (PPG), and Conoco, Inc. (Conoco), the respondents here, challenged a decision of the Administrator concerning the applicability of EPA's "new source" performance standards to a power generating facility operated by PPG. More specifically, we must decide whether the Administrator's decision falls within the ambit of "any other final action" reviewable in a court of appeals under § 307(b)(1). 2 * The dispute underlying this jurisdictional question involves a decision of the Administrator under § 111 of the Act, 42 U.S.C. § 7411 (1976 ed., Supp. II). That provision requires the Administrator to publish, and from time to time to revise, a list of categories of any stationary source that he determines "causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare," § 111(b)(1)(A), and to promulgate regulations establishing standards of performance for "new sources" within the list of those categories, § 111(b)(1)(B). The Act defines a "new source" as "any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source." § 111(a)(2). 3 In 1971, the Administrator included "fossil fuel-fired steam generators" in his list of stationary sources. 36 Fed.Reg. 5931. Later that year, pursuant to his mandate to promulgate "new source" performance standards, the Administrator established certain emission limits for any "fossil fuel-fired steam generating unit" of more than 250 million Btu's per hour heat input, the construction or modification of which was commenced after August 17, 1971, the date on which the standards were proposed. 40 CFR §§ 60.1-60.15, 60.40-60.46 (1979). These "new source" regulations define the term, "fossil fuel-fired steam generating unit," § 60.41(a), and also create a procedure under which the Administrator, upon request, will determine whether any action taken or planned by the owner or operator of a facility constitutes or will constitute "construction" or "modification" of the facility for purposes of triggering the applicability of the performance standards. § 60.5. 4 Sometime in 1970, the respondent PPG, a chemical manufacturing corporation, began the planning and preliminary construction of a new power generating facility at its plant in Lake Charles, La. That facility, designed to take advantage of fuel-efficient "cogeneration" technology, was to consist of two gas turbine generators, two "waste-heat" boilers, and a turbogenerator. The dispute between EPA and PPG concerns the applicability of the "new source" performance standards to the waste-heat boilers of this facility. This controversy first arose in 1975, when the respondent Conoco, PPG's fuel supplier, informed EPA that Conoco was switching the supply of fuel to the Lake Charles facility from natural gas to fuel oil. An exchange of correspondence ensued, initiated by EPA's request that PPG submit additional information bearing on whether the waste-heat boilers were covered by the "new source" standards. PPG's submissions revealed that although assembly of the waste-heat boilers had not begun until 1976, the new power facility itself, of which the boilers were an integral component, had been originally designed and partially ordered in 1970, a year before the proposed date of the "new source" performance standards. 5 On the basis of PPG's submissions, the Regional Director for Enforcement of the EPA notified PPG of his conclusion that the boilers were subject to the "new source" standards, since construction of the boilers themselves had not begun until long after January 14, 1971, the date on which the standards had been proposed. In response, PPG took the position that the boilers were part of an integrated unit, the construction of which had begun in 1970, before the proposed date of the standards. The Regional Director, nevertheless, reaffirmed his initial decision. 6 Pursuant to the procedure outlined in the "new source" regulations, 40 CFR § 60.5 (1979), PPG then submitted a formal request for an EPA determination that (1) the "new source" standards for "fossil fuel-fired steam generators" do not apply to the type of boilers in question, and (2) in any event since construction of the facility of which the boilers were a part began before the date on which the standards were proposed, the boilers were not "new sources" and thus not subject to the performance standards. In the event that EPA determined that PPG's waste-heat boilers were subject to the standards, PPG also requested a clarification as to how those standards would apply. 7 Responding to PPG's request, the Regional Administrator notified PPG by letter that he had concluded that the waste-heat boilers were, indeed, subject to the "new source" standards for "fossil fuel-fired steam generators," and rejected PPG's argument that construction of the boilers had begun with the construction of other facets of the Lake Charles facility. Thus, the Regional Administrator affirmed the previous EPA determination that the waste-heat boilers were subject to the "new source" performance standards. With regard to the manner in which those standards were to apply to the waste-heat boilers, the Regional Administrator indicated that since PPG's gas turbine generators were not subject to the "new source" standards, PPG would be held accountable only for those emissions from the waste-heat boilers attributable to the combustion of fossil fuel, not those emissions attributable to waste heat from the gas turbine generators.2 8 PPG then filed a petition in the Court of Appeals for the Fifth Circuit, seeking review of EPA's decision concerning the applicability of the "new source" standards to its waste-heat boilers. Because of its uncertainty regarding the proper forum for judicial review, PPG also filed a complaint for injunctive relief against the Administrator in the United States District Court for the Western District of Louisiana. That suit has been stayed pending the disposition of the present case. 9 PPG's uncertainty, and the issue in this case, stem from conflicting views as to the proper interpretation of § 307(b)(1) of the Act, 42 U.S.C. § 7607(b)(1) (1976 ed., Supp. II). Before 1977, § 307(b)(1) provided for exclusive review in an appropriate court of appeals of certain locally or regionally applicable actions of the Administrator under several specifically enumerated provisions of the Act. Actions of the Administrator under provisions not specifically enumerated in § 307(b)(1) were reviewable only in a district court under its federal-question jurisdiction, 28 U.S.C. § 1331. Congress expanded the ambit of § 307(b)(1) in 1977. The Clean Air Act Amendments of 1977, Pub.L. 95-95, 91 Stat. 776, added to the list of locally or regionally applicable actions reviewable exclusively in the appropriate court of appeals both (1) actions of the Administrator under another specifically enumerated provision of the Act, and (2) "any other final action of the Administrator under [the] Act which is locally or regionally applicable." (Emphasis added.) Later in 1977, in enacting the Clean Air Act Technical and Conforming Amendments, Pub.L. 95-190, 91 Stat. 1404, Congress added several more provisions to those listed in § 307(b)(1) under which a locally or regionally applicable action of the Administrator is reviewable in the appropriate court of appeals. 10 It was under § 307(b)(1), as amended, that PPG filed a petition for review in the Court of Appeals for the Fifth Circuit. Despite having filed its petition there, PPG, and Conoco as intervenor, argued that that court was without jurisdiction, since the Administrator's decision was not an action taken under one of the provisions specifically enumerated in § 307(b)(1), and could not be properly characterized as "any other final action of the Administrator." The latter phrase, they argued, referred only to other locally or regionally applicable final actions under the provisions of the Act specifically enumerated in § 307(b)(1). In response, EPA argued that the phrase, "any other final action," should be read literally to mean any final action of the Administrator. 11 The Court of Appeals concluded that the Administrator's decision did not fall within the meaning of "any other final action" under § 307(b)(1). 587 F.2d 237. It was the court's view that "[i]f Congress intended . . . to cast the entire responsibility for reviewing all EPA action under the Act into the courts of appeals, the numeration of specific sections would appear to be redundant." Id., at 243. The "most revealing" aspect of the legislative history of § 307(b)(1), the court thought, was the complete absence of any discussion of such a "massive shift" in jurisdiction. Moreover, the court found it unlikely that Congress could have intended a shift of jurisdiction that would require the courts of appeals to review decisions of the Administrator that simply applied or interpreted his regulations, as in this case. Such a decision, the court noted, is often based on a "skeletal record" that may leave the reviewing court unable to perform meaningful judicial review. Since an appellate court is ill-suited to augment such a record, especially when compared to a trial court in which the tools of discovery are available, the court concluded that "[w]hatever addition to the jurisdiction of the courts of appeals Congress may have contemplated by adding the 'any other final action' language to § 307(b)(1), we assume that section was drafted with the mechanical limitations of the courts of appeals in mind." 587 F.2d, at 245. Accordingly, the Court of Appeals dismissed PPG's petition for lack of jurisdiction under § 307(b)(1). We granted certiorari, 444 U.S. 823, 100 S.Ct. 43, 62 L.Ed.2d 29 because of the importance of determining the locus of judicial review of the actions of EPA. II 12 It is undisputed that the Administrator's decision concerning the applicability of the "new source" performance standards to PPG's waste-heat boilers was locally applicable action under a provision of the Act not specifically enumerated in § 307(b)(1). The question at issue is whether the Administrator's decision falls within the scope of the phrase, "any other final action of the Administrator," so as to make that decision reviewable in a federal court of appeals under § 307(b)(1). 13 At the outset, we note that the parties are in agreement that the Administrator's decision was "final action" as that term is understood in the context of the Administrative Procedure Act and other provisions of federal law. It is undisputed that the Administrator's ruling represented EPA's final determination concerning the applicability of the "new source" standards to PPG's power facility. Short of an enforcement action, EPA has rendered its last word on the matter. The controversy thus is not about whether the Administrator's decision was "final," but rather about whether it was "any other final action" within the meaning of § 307(b)(1), as amended in 1977. 14 * The petitioners argue that the phrase, "any other final action," should be construed in accordance with its literal meaning so as to reach any action of the Administrator under the Act that is "final" and not taken under a specifically enumerated provision in § 307(b)(1). The respondents argue that the statutory language should be construed more narrowly. Relying on the familiar doctrine of ejusdem generis, they assert that the phrase, "any other final action," should be read not to reach all final actions of the Administrator, but rather only those similar to the actions under the specifically enumerated provisions that precede that catchall phrase in the statute.3 The similarity that the respondents discern among the actions under the specifically enumerated provisions in § 307(b)(1) is that those actions must be based on what the respondents refer to as "a contemporaneously compiled administrative record," by which they mean a record "based on administrative proceedings reflecting at least notice and opportunity for hearing." Since the Administrator's informal decision in this case was not based on such a record, the respondents argue that his decision was not "other final action" within the meaning of § 307(b)(1) and thus not within the jurisdiction of the Court of Appeals.4 15 The respondents' reliance on the rule of ejusdem generis is, we think, misplaced in two respects. Under the rule of ejusdem generis, where general words follow an enumeration of specific items, the general words are read as applying only to other items akin to those specifically enumerated. Applying this rule to § 307(b)(1), the respondents argue that "any other final action" must refer only to final actions based on an administrative record reflecting at least notice and opportunity for a hearing. The flaw in this argument is that at least one of the specifically enumerated provisions in § 307(b)(1), namely, § 112(c) of the Act, 42 U.S.C. § 7412(c) (1976 ed., Supp. II), does not require the Administrator to act only after notice and opportunity for a hearing. In fact, the respondents themselves recognize that an action by the Administrator under § 112(c) would be based on an administrative record not unlike that involved in this case.5 Thus, even if the rule of ejusdem generis were applied, it would not significantly narrow the ambit of "any other final action" under § 307(b)(1). 16 The second problem with the respondents' reliance on the rule of ejusdem generis is more fundamental. As we have often noted: " 'The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty.' " United States v. Powell, 423 U.S. 87, 91, 96 S.Ct. 316, 319, 46 L.Ed.2d 228, quoting Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522. With regard to § 307(b)(1), we discern no uncertainty in the meaning of the phrase, "any other final action." When Congress amended the provisionin 1977, it expanded its ambit to include not simply "other final action," but rather "any other final action." This expansive language offers no indication whatever that Congress intended the limiting construction of § 307(b)(1) that the respondents now urge. Accordingly, we think it inappropriate to apply the rule of ejusdem generis in construing § 307(b)(1). Rather, we agree with the petitioners that the phrase, "any other final action," in the absence of legislative history to the contrary, must be construed to mean exactly what it says, namely, any other final action.6 B 17 We have found nothing in the legislative history to support a conclusion that the phrase, "any other final action," in § 307(b)(1) means anything other than what it says. 18 Congress added the language, "any other final action," to § 307(b)(1) in the Clean Air Act Amendments of 1977. The phrase first appeared in H.R. 6161, 95th Cong., 1st Sess. (1977). That bill, as reported out of the House Committee on Interstate and Foreign Commerce, expanded the jurisdiction of the Court of Appeals for the District of Columbia Circuit to include review of not only certain EPA actions of nationwide consequences under specifically enumerated provisions of the Act, but also "any other nationally applicable regulations promulgated, or final action taken, by the Administrator under [the Act]." In parallel fashion, the bill expanded the jurisdiction of the regional courts of appeals to include review not only of certain local or regional actions under specifically enumerated provisions, but also of "any other final action of the Administrator under [the Act] which is locally or regionally applicable." (Emphasis added.) 19 The only extended discussion of this proposed amendment to § 307(b)(1) was contained in the Committee Report accompanying H.R. 6161. H.R.Rep. No. 95-294, pp. 323-324 (1977). That discussion, however, focused not on the jurisdictional question at issue here, but rather on the proper venue as between the District of Columbia Circuit and the other Federal Circuits. The Committee Report described the proposed amendments as "intended to clarify some questions relating to venue for review of rules or orders under the [A]ct." Id., at 323. In this regard, the Committee Report explained: 20 "[The proposed addition to the first sentence of § 307(b)(1)] makes it clear that any nationally applicable regulations promulgated by the Administrator under the Clean Air Act could be reviewed only in the U. S. Court of Appeals for the District of Columbia. . . . 21 "[The proposed addition to the second sentence] provides for essentially locally, statewide, or regionally applicable rules or orders to be reviewed in the U. S. court of appeals for the circuit in which such locality, State, or region is located. . . . " Ibid. 22 The Committee Report further stated that the proposed changes reflected the Committee's agreement with certain venue proposals of the Administrative Conference of the United States, but added the caveat that the adoption of these proposals was not to be taken as an endorsement of the remainder of the Administrative Conference's recommendations. Id., at 324. 23 The respondents infer from this scant legislative history that Congress never intended the addition of the phrase, "any other final action," to § 307(b)(1) to enlarge the jurisdiction of the courts of appeals to include the review of cases based on an administrative record reflecting less than notice and an opportunity for a hearing. But, insofar as the respondents rely on what the Committee said in its Report, we fail to see how the Committee's observations on venue have any bearing at all on the jurisdictional issue now before the Court.7 Moreover, since the Administrative Conference had not proposed that the jurisdiction of the courts of appeals be expanded to include "any other final action," the fact that the Committee expressly disclaimed an endorsement of the recommendations of the Administrative Conference on matters other than venue would appear wholly irrelevant. 24 The respondents also rely on what the Committee and the Congress did not say about the 1977 amendments to § 307(b)(1). It is unlikely, the respondents assert, that Congress would have expanded so radically the jurisdiction of the courts of appeals, and divested the district courts of jurisdiction, without some consideration and discussion of the matter. We cannot accept this argument. First, although the number of actions comprehended by a literal interpretation of "any other final action" is no doubt substantial, the number would not appear so large as ineluctably to have provoked comment in Congress. Secondly, it would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute. In ascertaining the meaning of a statute, a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark.8 C 25 The respondents finally argue that, as a matter of policy, the basic purpose of § 307(b)(1)—to provide prompt pre-enforcement review of EPA action—would be better served by providing for judicial review of cases such as this in a district court rather than a court of appeals.9 It is the respondents' view that since agency action predicated on neither formal adjudication nor informal rulemaking is apt to be based on a record too scant to permit informed judicial review, the district court is the preferable forum, since the tools of discovery are there available to augment the record, whereas in a court of appeals a time-consuming remand to EPA might be required. 26 This is an argument to be addressed to Congress, not to this Court. It is not our task to determine which would be the ideal forum for judicial review of the Administrator's decision in this case. See, e. g., Currie & Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum.L.Rev. 1 (1975). Rather, we must determine what Congress intended when it vested the courts of appeals with jurisdiction under § 307(b)(1) to review "any other final action." The language of the statute clearly provides that a decision of the sort at issue here is reviewable in a court of appeals, and nothing in the legislative history points to any different conclusion.10 27 We add only that, as a matter of policy, this conferral of jurisdiction upon the courts of appeals is not wholly irrational. The most obvious advantage of direct review by a court of appeals is the time saved compared to review by a district court, followed by a second review on appeal. It may be seriously questioned whether the overall time lost by court of appeals remands to EPA of those cases in which the records are inadequate would exceed the time saved by forgoing in every case initial review in a district court. But whatever the answer to this empirical question, an appellate court is not without recourse in the event it finds itself unable to exercise informed judicial review because of an inadequate administrative record. In such a situation, an appellate court may always remand a case to the agency for further consideration.11 28 For the reasons stated, we hold that the Court of Appeals erred in dismissing the petition for want of jurisdiction. Accordingly, the judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. 29 It is so ordered. 30 Mr. Justice POWELL, concurring. 31 I continue to have reservations about the constitutionality of the notice and review preclusion provisions of § 307(b). Adamo Wrecking Co. v. United States, 434 U.S. 275, 289, 98 S.Ct. 566, 575, 54 L.Ed.2d 538 (1978) (POWELL, J., concurring); see ante, at 592-593, n. 9. Congress has extended to 60 days the period within which a petition for review may be filed under § 307(b)(1). But publication in the Federal Register still is unlikely to provide constitutionally adequate notice that a failure to seek immediate review will bar affected parties from challenging the noticed action in a subsequent criminal prosecution. An informal exchange of letters, like those involved in this case, often will provide no greater protection. Although these constitutional difficulties well may counsel a narrow construction of § 307(b)(1), cf. Chrysler Corp. v. EPA, 195 U.S.App.D.C. 90, 98-100, 600 F.2d 904, 912-914 (1979) (parallel provisions of Noise Control Act), no such construction is possible in this case. As the Court demonstrates, the intention of Congress is clear. Accordingly, I join the opinion of the Court. 32 Mr. Justice BLACKMUN, concurring in the result. 33 For the reasons stated in my Brother STEVENS' dissent, I accept the Court's conclusion that the Agency's determination in this case constituted "final" action. The opaque language of § 307(b)(1) and the scant attention it received by Congress, however, leave me in doubt concerning Congress' true intention with respect to the scope of direct appellate review. Like my dissenting Brethren, I find it difficult to believe that Congress would undertake such a massive expansion in the number of Agency actions directly reviewable by the courts of appeals without some palpable indication that it had given thought to the consequences. Nonetheless, I agree with the Court that the dearth of evidence to the contrary makes its broad interpretation of the statute inescapable. On this legislative record, we must leave to Congress, should it be so inclined, the task of introducing some clear limitation on appellate jurisdiction over review of informal Agency determinations like the one now before us. 34 Mr. Justice REHNQUIST, dissenting. 35 The effort to determine congressional intent here might better be entrusted to a detective than to a judge. The Court rejects the application of the traditional canon of ejusdem generis to the phrase "any other final action" on the grounds that (1) there is no uncertainty as to the meaning of that phrase, ante, at 588, and (2) at least one of the provisions now included in § 307(b)(1), 42 U.S.C. § 7607(b)(1) (1976 ed., Supp. II)—i. e., § 112(c), 42 U.S.C. § 7412(c) (1976 ed., Supp. II)—does not require the Administrator to act after notice and opportunity for comment or hearing, supra, at 588. While I agree with the Court that the phrase "any other final action" may not by itself be "ambiguous," I think that what we know of the matter makes Congress' additions to § 307(b)(1) in the Clean Air Act Technical and Conforming Amendments of 1977 no less curious than was the incident in the Silver Blaze of the dog that did nothing in the nighttime. If I am correct in this, we must look beyond the language of the phrase "any other final action" in ascertaining congressional intention. The Court did just that in Chemehuevi Tribe of Indians v. FPC, 420 U.S. 395, 95 S.Ct. 1066, 43 L.Ed.2d 279 (1975). 36 Before 1977, § 307(b)(1) granted exclusive jurisdiction to courts of appeals to review only a limited class of actions taken by the Administrator.1 District of Columbia v. Train, 175 U.S.App.D.C. 115, 119, 533 F.2d 1250, 1254 (1976); Utah Power & Light Co. v. EPA, 180 U.S.App.D.C. 70, 72, 553 F.2d 215, 217 (1977). The EPA was required to provide for notice and an opportunity for hearing or comment with respect to all such actions. These procedural requirements generally result in the creation of an administrative record that is more susceptible of judicial review by courts of appeals than actions such as the one in this case in which no notice and opportunity for comment are required.2 Indeed, it has been stated: "The requirements that interested persons have an opportunity at least for written comment and that the agency provide a general statement of reasons virtually assure that an appellate court will have a meaningful record to review. While it is true that in many instances informal adjudication also produces an administrative record, the nature and scope of the records vary widely from one type of action to another and cannot provide the same assurance that appellate review will be feasible." Currie & Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum.L.Rev. 1, 57 (1975). Thus the grant of exclusive jurisdiction to courts of appeals in pre-1977 § 307(b)(1) actions fully comports with the traditional role of appellate courts in reviewing agency decisions that are based on development of factual issues by means of an administrative record.3 37 The revision of § 307(b)(1) during the Clean Air Act Amendments of 1977, when Congress added the phrase "any other final action," does not in my view support the Court's construction of that phrase as a major expansion of Congress' original limited grant of exclusive jurisdiction to federal courts of appeals. The amendment added only § 120, 42 U.S.C. § 7420 (1976 ed., Supp. II), to the list of those specifically enumerated in § 307(b)(1), and it also included the "any other final action" phrase. Pub.L. 95-95, 91 Stat. 776. Section 120 does not depart from the requirement of notice and opportunity for comment or hearing that existed prior to 1977 with respect to the other sections specifically enumerated in § 307(b)(1). It directs the EPA to give notice and an opportunity for public hearing before adopting the authorized regulations. And in adding the phrase "any other final action" Congress gave no indication whatsoever that it intended to make reviewable in the courts of appeals actions that differed substantially in character from those authorized by § 120 and the other sections listed in § 307(b)(1). Instead the limited legislative history on the subject suggests that the amendment was aimed at resolving problems of venue under the section, not at effecting a major jurisdictional shift from the district courts to courts of appeals.4 38 If Congress had done nothing more than enact this amendment, I doubt that the Court would find application of the rule of ejusdem generis problematic. See infra, at 601. The difficulty in ascertaining Congress' intention here arises from the so-called "technical amendments" enacted 3 months after Congress adopted the Clean Air Act Amendments in 1977. Clean Air Act Technical and Conforming Amendments of 1977, Pub.L. 95-140, 91 Stat. 1404. The amendments purportedly made no substantive changes in the earlier amendments.5 They nonetheless altered § 307(b)(1) by specifying four additional sections that would trigger the original jurisdiction of courts of appeals: § 111(j), 42 U.S.C. § 7411(j) (1976 ed., Supp. II); § 112(c), 42 U.S.C. § 7412(c) (1976 ed., Supp. II); § 113(d), 42 U.S.C. § 7413(d) (1976 ed., Supp. II); and § 119, 42 U.S.C. § 7419 (1976 ed., Supp. II). EPA maintains that these additions make no substantive changes because the "any other final action" phrase already included actions under these sections, and under the Court's interpretation of that phrase this would clearly be the case. This view, however, also leads to the conclusion that the technical amendments were a largely meaningless exercise of Congress' legislative authority. But, as previously noted, in presenting the technical amendments, Senator Muskie said they were "necessary to correct technical errors or unclear phrases." 123 Cong.Rec. 36252 (1977) (emphasis added); n. 4, supra. Thus, the technical amendments, coupled with Senator Muskie's statement in introducing them, present this Court with a paradox in attempting to ascertain Congress' intention: under the Court's interpretation of the phrase "any other final action" the technical amendments, contrary to their advance billing, were entirely unnecessary because the phrase clearly includes those sections. But if "any other final action" means anything less than the Court's interpretation, then the technical amendments, again contrary to their stated purpose, made important substantive changes to § 307(b)(1).6 The Court attempts, partially and unsuccessfully, to address the difficulty here in a footnote, when it acknowledges that under its interpretation the technical amendments were "unnecessary." That response, however, does not answer the question: It merely restates it. The Court adds only the additional observation that "[t]his may be true, but the fact remains that even if Congress had intended the phrase 'any other final action' to be read . . . in accordance with the rule of ejusdem generis, there still would have been no necessity to add to the list of specifically enumerated provisions." Ante, at 589, n. 6. 39 In my view, absent any clear indication to the contrary, the statute should not be construed as creating a broad expansion of the jurisdiction of the federal courts of appeals. Such an approach is quite appropriate in this case because the jurisdictional expansion wrought by the Court is thoroughly inconsistent with the traditional role of appellate courts. Indeed, I think it is difficult to believe that Congress would adopt a massive shift in jurisdiction from the district courts to the courts of appeals without any comment whatsoever. The sketchy legislative history here indicates that Congress considered the Administrative Conference's recommendations and that the principal purpose of the 1977 amendment was to effect the change in venue that was recommended by the Administrative Conference. The change would be far less substantial than the jurisdictional shift that according to the Court Congress adopted sub silentio. And the remarks made at the time the technical amendments were adopted, coupled with the nature of the actions reviewable under § 307(b)(1) prior to that time, are sufficiently perplexing that in my view the technical amendments do not shed any meaningful light on Congress' intention in adding the phrase "any other final action" to § 307(b)(1). Accordingly, even though they be labeled "technical amendments" I think they are most accurately viewed as subsequent legislative history that is not controlling in interpreting a prior enactment. See United Air Lines, Inc. v. McMann, 434 U.S. 192, 200, n. 7, 98 S.Ct. 444, 448, n. 7, 54 L.Ed.2d 402 (1977). Indeed, to one not acquainted with the significance of the expansion of jurisdiction of courts of appeals urged by the EPA and adopted by the Court, the technical amendments most likely looked like minor additions to § 307(b)(1). Thus, I think the most sensible way to interpret the phrase "any other final action" is to do so by reference to § 307(b)(1) at the time that phrase was enacted, rather than at the subsequent time at which the technical amendments were added. 40 If the phrase "any other final action" is interpreted by reference to § 307(b)(1) at the time the phrase was added, this case is clearly a proper one in which to apply the rule of ejusdem generis. The rule of ejusdem generis ordinarily "limits general terms which follow specific ones to matters similar to those specified." Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522 (1936). It rests on the notion that statutes should be construed so that the "sense of the words . . . best harmonizes with the context and the end in view." Ibid. At the time the general language "any other final action" was adopted, notice and opportunity for comments or hearing were required for the actions listed in the sections that preceded it—a requirement that distinguished those sections from the Administrator's action at issue here. Thus under the principle of ejusdem generis, the general phrase refers to similar types of actions. This interpretation offers the most satisfactory explanation for Congress' curious failure to provide any indication that it intended to effect a major jurisdictional change in the manner of reviewing EPA actions such as the one before us, a change that is inconsistent with the traditional role of appellate courts. In a case where the construction of legislative language such as this makes so sweeping and so relatively unorthodox a change as that made here, I think judges as well as detectives may take into consideration the fact that a watchdog did not bark in the night. 41 Mr. Justice STEVENS, dissenting. 42 From May 1976 through June 1977, respondent PPG Industries, Inc. (PPG), exchanged a series of letters with various officials of the Environmental Protection Agency concerning the applicability of certain federal performance standards to PPG's waste-heat boilers at its Lake Charles, La., plant. PPG took the position that its boilers were not required to meet these standards, first, because construction had begun on them prior to the effective date of the standards and, second, because waste-heat boilers are not within the category of sources to which the standards in question apply.1 43 In April 1977 PPG submitted a formal request, pursuant to 40 CFR § 60.5(a), for a definitive determination on these issues. Although § 60.5(a) provides for such determinations only with respect to the first issue raised by PPG,2 EPA's Regional Administrator apparently rejected both arguments in her June 1977 response, unequivocally stating that PPG's boilers were subject to the standards in question. 44 After a few more "clarifying" letters were exchanged, PPG brought two separate petitions for review of EPA's determination, filing in both the District Court for the Western District of Louisiana and the Court of Appeals for the Fifth Circuit. The Fifth Circuit dismissed the petition on the ground that review was properly had, if at all, in the District Court. 45 There are two issues before us today: first, whether EPA's determination constitutes "final" agency action such that any review is appropriate and, second, if so, whether that review must be had in the Court of Appeals because the determination constituted "any other final action" within the meaning of § 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1) (1976 ed., Supp. II). While I accept the Court's holding that the Agency's determination constituted "final" action as that term is ordinarily used under the Administrative Procedure Act, I am not persuaded that Congress intended exclusive review of this type of action in the courts of appeals. 46 In Abbott Laboratories v. Gardner, 387 U.S. 136, 149-156, 87 S.Ct. 1507, 1515-1519, 18 L.Ed.2d 681, this Court set out three tests that informal agency action must meet in order to be considered final agency action that is ripe for judicial review. First, the action must involve an issue that is appropriate for judicial review, such as a purely legal question. Second, it must be a definitive statement of the agency's position and not merely a tentative view or the opinion of a subordinate official. Finally, the party seeking review of the action must be faced with serious hardship if he is not allowed to obtain pre-enforcement review. In Abbott Laboratories itself the third requirement was satisfied by the fact that the affected companies either had to expend substantial amounts of money to comply with the regulation or not comply and risk serious criminal and civil penalties. 47 Although informal advice by agency personnel as to how the Agency is likely to react to a particular set of circumstances will not ordinarily be subject to judicial review under the Abbott Laboratories tests, this case would seem to be an exception. As EPA argues, the only issue to be decided is whether certain regulations apply under the facts submitted to the Agency by PPG. Second, the Regional Administrator of EPA herself signed the letter rejecting PPG's position; thus, it appears to be, as the Court suggests, the Agency's "last word" on the issue. Ante, at 586.3 And finally, although the parties have not informed us of the magnitude of PPG's estimated compliance costs, it appears that PPG would have to risk sizeable penalties under 42 U.S.C. §§ 7413(b), (c), and 7420 (1976 ed., Supp. II) in order to challenge EPA's determination in enforcement proceedings.4 48 Assuming that EPA's letter in this case would constitute "final agency action" under the APA, the second question is whether we are compelled by the language of § 307(b)(1) to hold that the Court of Appeals had exclusive jurisdiction to review that action. As Mr. Justice REHNQUIST points out in his dissent, such a construction of the statute will greatly increase the burdens currently borne by the courts of appeals, both in terms of numbers of cases and difficulty of issues presented.5 Ante, at 596-597, 600-601. In my view, it will also distort the concept of final agency action by giving EPA virtually unlimited discretion to transform its informal advise into final agency action subject to court of appeals' review. 49 Under § 307(b)(2) of the Clean Air Act, any agency action that was reviewable in the courts of appeals cannot be challenged in an enforcement proceeding, whether or not review was actually sought.6 Under § 307(b)(1), a petition for review must be filed within 60 days of the publication of the agency action in the Federal Register. Although EPA apparently did not publish letters like its letter to PPG in the Federal Register prior to the Clean Air Act Amendments of 1977, it is now embarking on a program to do so.7 Because publication may give the Agency the benefit of the preclusive effect of § 307(b)(2), it has every incentive to notice a wide range of actions in the Federal Register. 50 Once notice of an action has been published in the Federal Register, it would be difficult to argue that it was not "final" agency action. Most of the determinations would, like this one, concern applications of particular regulations to undisputed fact situations. Second, the very fact that the Agency had published its position would indicate that it was a definitive statement of agency policy. And finally, the requirement that an aggrieved person show some hardship entitling him to pre-enforcement review would also seem to be satisfied by mere publication, since the failure to raise the issue might well foreclose future review entirely.8 51 I find it difficult to believe that Congress intended this highly undesirable result. Although I do not share Mr. Justice REHNQUIST's interpretation of the statute, I would construe it as drawing a line short of allowing EPA complete discretion to turn anything it chooses into final action reviewable only in the courts of appeals. 52 Section 307(b)(1) mandates exclusive review in the courts of appeals of the Administrator's actions under certain specific subsections of the Act. Those subsections contain specific grants of authority to the Administrator to make certain determinations. Thus, §§ 110 and 111(d), 42 U.S.C. §§ 7410 and 7411(d) (1976 ed., Supp. II), empower the Administrator to approve state implementation plans; §§ 111(j), 112(c), 113(d) and 119, 42 U.S.C. §§ 7411(j), 7412(c), 7413(d) and 7419 (1976 ed., Supp. II), empower the Administrator to grant (and by necessary implication to deny) waivers to companies that are unable to comply with the applicable standards; and § 120, 42 U.S.C. § 7420 (1976 ed., Supp. II), sets up a procedure through which the Administrator is to assess noncompliance penalties, after notice and hearing on the record. Each of these types of agency action has an immediate impact on the legal rights of the affected party. 53 By contrast, agency advice as to whether or not particular sources are subject to previously promulgated regulations does not, in itself, change any party's legal status; nor is there anything in the statute that specifically requires or permits the Administrator to give such advice. This does not mean that it is beyond the Administrator's power to do so or to set up his own procedures, as he has done in 40 CFR § 60.5(a) (1979), for giving advice in a formalized manner. But I do not believe Congress intended the review provisions of the statute to cover this type of "agency action" as well as those types specifically contemplated by the statute. In making reviewable "any other final action of the Administrator under this chapter," Congress must have been thinking of actions it had specifically directed or authorized the Administrator to take under sections of the Act not specifically enumerated in § 307(b)(1). This interpretation is consistent with both an ejusdem generis construction of the statute and its plain language. It is also supported by Congress' apparent belief that it was extending court of appeals' review only to the types of actions that EPA had been accustomed to publishing in the Federal Register. See n. 7, supra. 54 Accordingly, I respectfully dissent. 1 Section 307(b)(1) provides in full: "A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 112, any standard of performance or requirement under section 111, any standard under section 202 (other than a standard required to be prescribed under section 202(b)(1) ), any determination under section 202(b)(5), any control or prohibition under section 211, any standard under section 231, any rule issued under section 113, 119, or under section 120, or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this Act may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 110 or section 111(d), any order under section 111(j), under section 112(c), under section 113(d), under section 119, or under section 120, or his action under section 119(c)(2)(A), (B), or (C) (as in effect before the date of enactment of the Clean Air Act Amendments of 1977) or under regulations thereunder, or any other final action of the Administrator under this Act (including any denial or disapproval by the Administrator under title I) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise." (Emphasis added.) § 307(b)(1) of the Act, as added, 84 Stat. 1708, and amended by the Clean Air Act Amendments of 1977, Pub.L. 95-95, 91 Stat. 776, and the Clean Air Act Technical and Conforming Amendments, § 14 of Pub.L. 95-190, 91 Stat. 1404, 42 U.S.C. § 7607(b)(1) (1976 ed., Supp. II). 2 In a request for clarification, PPG expressed its understanding that the "new source" standards would not be applicable during the normal course of operation of the boilers, but only during performance tests or other periods when the boilers were operating on 100% fossil fuel. EPA by letter confirmed PPG's understanding. This position, however, was inconsistent with both the Regional Administrator's earlier ruling and with EPA's position in similar cases. Accordingly, an EPA representative notified PPG by telephone that the letter was incorrect. In a subsequent letter, the Director of the Division of Stationary Source Enforcement of EPA reiterated that the "new source" standards would be applicable during the normal operation of the waste-heat boilers, but only to the extent that the boilers were operating on fossil fuel, rather than waste heat. The Director also indicated that, pursuant to the standards, PPG would be required to operate the boilers at all times with fuel containing less than a certain specified content of sulfur. He further noted that PPG would be required to install and operate opacity monitors in the stacks of the boilers and to perform alternative monitoring tests. 3 The respondents have abandoned the construction of the statute they advanced in the Court of Appeals, namely, that the phase, "any other final action," refers only to other final actions under those provisions specifically enumerated in § 307(b)(1). That construction, as the Court of Appeals correctly noted, is inconsistent with the fact that the phrase, "any other final action," is modified not by "under these sections," but rather by "under this Act." 4 It would appear that the respondents' construction of the statute is that adopted by the Court of Appeals, although the matter is not free from doubt. The doubt arises from the fact that the Court of Appeals' opinion can also be read as establishing a jurisdictional test that turns on a case-by-case inquiry into the adequacy of the administrative record. But, as the respondents themselves acknowledge, that reading of the opinion would create excessive uncertainty as to the proper forum for judicial review. 5 The respondents argue that this exception should be ignored in applying the rule of ejusdem generis, since § 112(c) governs the regulation of "hazardous air pollutants" for which Congress may have wanted "special review" in the courts of appeals, even in the absence of procedures requiring notice and opportunity for a hearing. It is our view, however, that if the rule of ejusdem generis is applicable, it must be applied to actions under all the specifically enumerated provisions in § 307(b)(1), not simply those that fit the respondents' theory. 6 The respondents raise several objections to so literal a reading of § 307(b)(1), none of which we find persuasive. First, the respondents assert that such a construction of § 307(b)(1) is both internally inconsistent and inconsistent with another provision of the Act. The internal inconsistency is said to arise from the fact that if the phrase, "any other final action," were construed to include any final action of the Administrator, it would nullify the express exception from review in § 307(b)(1) of any "standard required to be prescribed under section 202(b)(1)." The inconsistency with another provision in the Act is said to arise from the fact that a literal reading of "any other final action" would effectively repeal another judicial review provision in the Act, § 206(b)(2)(B), 42 U.S.C. § 7525(b)(2)(B) (1976 ed., Supp. II). These objections fall far short of the mark, however, for the general language of the catchall phrase, "any other final action," must obviously give way to specific express provisions in the Act. The respondents also argue that if Congress had intended the phrase, "any other final action," to refer to all final actions of the Administrator, it would have been unnecessary, in 1977, to add to the list in § 307(b)(1) of specifically enumerated provisions under which actions of the Administrator are reviewable in the courts of appeals. This may be true, but the fact remains that even if Congress had intended the phrase, "any other final action," to be read, as the respondents urge, in accordance with the rule of ejusdem generis, there still would have been no necessity to add to the list of specifically enumerated provisions. 7 That the Committee intended the phrase, "any other final action," to result in at least some expansion of the jurisdiction of the courts of appeals is evident in the fact that the Committee Report expressly indicated that several types of nationwide actions under provisions not specifically enumerated in § 307(b)(1) would be reviewable in the District of Columbia Circuit. See H.R.Rep. No. 95-294, pp. 323-324 (1977) (e. g., regulations to carry out the nonattainment policy set out in § 117 of the Act). Thus, as even the respondents concede, the issue here is not whether Congress intended any expansion of the jurisdiction of the courts of appeals, but rather the extent to which Congress intended to expand that jurisdiction. As to that issue, the legislative history is silent. 8 Arthur Conan Doyle, The Silver Blaze, in The Complete Sherlock Holmes (1938). 9 The respondents also argue that a literal construction of § 307(b)(1) would violate due process of law. This argument turns on the interrelationship between § 307(b)(1) and its companion provision, § 307(b)(2), which provides that "[a]ction of the Administrator with respect to which review could have been obtained under [§ 307(b)(1)] shall not be subject to judicial review in civil or criminal proceedings for enforcement." 42 U.S.C. § 7607(b)(2) (1976 ed., Supp. II). To preclude a defendant in a civil or criminal enforcement proceeding from attacking the validity of informal action on the part of the Administrator would, in the respondents' view, violate the defendant's due process right to a "reasonable opportunity to be heard and present evidence." Yakus v. United States, 321 U.S. 414, 433, 64 S.Ct. 660, 671, 88 L.Ed. 834. The short answer to the respondents' argument is that the validity of § 307(b)(2) is not at issue here. The constitutional question raised by the respondents must, therefore, await another day. 10 The dissenting opinions would modify the language of § 307(b)(1) so as to read either (1) any other final action similar to that under the specifically enumerated provisions other than those added in the Clean Air Act Technical and Conforming Amendments, post, at 600-602, or (2) any other final action expressly, but not impliedly, authorized under the sections of the Act not specifically enumerated in § 307(b)(1), post, at 607. But neither the language of the statute nor its legislative history supports either of these proposed readings of § 307(b)(1). 11 Whether the present administrative record in this case is adequate to permit informed judicial review is a question that the Court of Appeals must determine. 1 The section originally provided: "A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard under section 112, any standard of performance under section 111, any standard under section 202 (other than a standard required to be prescribed under section 202(b)(1)), any determination under section 202(b)(5), any control or prohibition under section 211, or any standard under section 231 may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 110 or section 111(d) may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval . . . ." Pub.L. 91-604, 84 Stat. 1708. It was inserted by the Senate, S.4358, 91st Cong., 2d Sess., § 308 (1970), to "specify forums for judicial review of certain actions of the [EPA] Secretary . . . ." H.R.Conf.Rep.No. 91-1783, p. 57 (1970), U.S.Code Cong. & Admin. News 1970, pp. 5356, 5389. The House bill did not contain a comparable provision. Ibid. In 1974, §§ 119(c)(2)(A), (B), and (C) and the phrase "regulations thereunder" were added to the list of actions reviewable under § 307(b)(1). Pub.L. 93-319, 88 Stat. 259. 2 At the Senate debates on S.4358, Senator Cooper stated that decisions of the EPA made after on-the-record development of "technical and other relevant information necessary to achieve a sound judgment . . . should be reviewable in the court of appeals so that the interests of all parties can be fully protected. With the record developed by the [EPA] Secretary, the court, as an unbiased, independent institution, is the appropriate forum for reviewing such decision and making a judgment as to its quality." 116 Cong.Rec. 33117 (1970). 3 "Direct appellate review of formal administrative adjudications . . . has long been standard practice: because the agency's action is to be judged by the administrative record, there is no need for a trial, and thus no need for prior resort to a district court." Currie, Judicial Review Under Federal Pollution Laws, 62 Iowa L.Rev. 1221, 1232 (1977) (emphasis added). See also Currie & Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum.L.Rev. 1, 5-6 (1975). 4 The only discussion of the 1977 addition to the Clean Air Act, § 307(b)(1), states that the amendment was "intended to clarify some questions relating to venue for review of rules or orders under the act." H.R.Rep.No. 95-294, p. 323 (1977) (emphasis added). The House Report noted that "[i]n adopting this subsection, the committee was in large measure approving the portion of the Administrative Conference of the United States recommendation Section 305.76-4(A), [41 Fed.Reg. 56768 (1976)], that deals with venue," and that the proposed amendment also "incorporates recommendation D2 of the Administrative Conference on extending the period for petitioning for judicial review in the court of appeals." Id., at 324. It further stated that it did not endorse the remainder of the Administrative Conference's recommendations, ibid., which include a recommendation that proposed expanding the jurisdiction of the courts of appeals by eliminating the exception to review in those courts for regulations adopted under § 202(b)(1), 42 U.S.C. § 7521(b)(1) (1976 ed., Supp. II). 5 In a statement explaining the amendments, Senator Muskie stated that "[i]t is not the purpose of these amendments to re-open substantive issues in the Clean Air Act." 123 Cong.Rec. 36252 (1977). Rather, he continued, "[o]nly those amendments that are necessary to correct technical errors or unclear phrases have been retained in the package of amendments that is now before the Senate." Ibid. 6 Section 112(c) does not make any provision for notice and comment or hearing. And, while §§ 111(j) and 119(a) generally provide for notice and hearing, they do not do so in every case. Under § 111(j), an order denying a waiver apparently may be made by the Administrator without formal proceedings, and under § 119(a), the Administrator apparently may deny an application for a primary nonferrous smelter order without providing for notice and hearing. 1 PPG also had questions about compliance in the event that the standards were found to apply. 2 Title 40 CFR § 60.5(a) (1979) provides: "When requested to do so by an owner or operator, the Administrator will make a determination of whether action taken or intended to be taken by such owner or operator constitutes construction (including reconstruction) or modification or the commencement thereof within the meaning of this part." 3 The Court relies exclusively on this factor, along with the fact that the parties agree that the action is "final." I would not place much reliance on the parties' agreement, however, since they share a common interest in having the threshold jurisdictional question resolved in the affirmative. Thus, it serves PPG's interests to treat EPA's letter as a final action because PPG wants judicial review as soon as possible. It also serves EPA's interests because broadening the category of agency actions that are final and reviewable only in the courts of appeals increases the number of agency actions that cannot be challenged in enforcement proceedings under the Act. See infra, at 605. 4 See National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 281, 443 F.2d 274, 281 (1971), in which the court held a letter signed by the Wage-Hour Administrator concerning a particular application of the Fair Labor Standards Act to be "final action" in light of the fact that noncompliance with the agency's policy could have led to criminal liability and actions for double damages by affected employees. But see West Penn Power Co. v. Train, 522 F.2d 302, 310-311 (CA3 1975), cert. denied, 426 U.S. 947, 96 S.Ct. 3165, 49 L.Ed.2d 1183; 522 F.2d, at 317-319 (Adams, J., dissenting), where the court refused to consider a notice of violation issued pursuant to the Clean Air Act to be final agency action despite the severe penalties that could have attached to future noncompliance. 5 Whether or not the record in this case was sufficiently developed for purposes of court of appeals' review (an issue on which the parties differ), it is clear that there will be many cases involving informal EPA action in which the "record" on which the Agency relied in making its determination will be minimal. 6 Section 307(b)(2) of the Clean Air Act provides: "Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement." 7 In EPA's brief in the Court of Appeals, it took the position that, by adding "any other final action" to § 307(b)(1), Congress intended to require the Agency to give notice in the Federal Register of each and every "final action" it takes, contrary to its prior practice. Although the Agency noted that it had not yet begun complying with this obligation, it stated that it intended to begin publication in the near future of all final agency actions taken since the 1977 amendments. Brief for Respondents in No. 77-2989 (CA 5), pp. 27-29. EPA's interpretation of the Federal Register clause as a requirement that notice of final determinations be given seems backwards to me. I think a more plausible interpretation of the statute is that Congress intended the term "final agency action" to refer only to the types of actions that EPA was accustomed to publishing in the Federal Register prior to the 1977 amendments. 8 The hardship determination, of course, becomes circular, since there is no preclusion unless there is "final" agency action and no finality unless there is some hardship in not according pre-enforcement review. Under these circumstances, the courts are likely to emulate the Court's approach in this case, ignoring the hardship component entirely and making reviewable any action that constitutes a definitive statement of the Agency's position.

78

446 U.S. 651 100 S.Ct. 1929 64 L.Ed.2d 587 Patricia R. HARRIS, Secretary of Health and Human Servicesv.Awilda Santiago ROSARIO et al. No. 79-1294. May 27, 1980. Rehearing Denied Aug. 11, 1980. See 448 U.S. 912, 101 S.Ct. 27. PER CURIAM. 1 The Aid to Families with Dependent Children program (AFDC), 49 Stat. 627, as amended, 42 U.S.C. § 601 et seq., provides federal financial assistance to States and Territories to aid families with needy dependent children. Puerto Rico receives less assistance than do the States, 42 U.S.C. §§ 1308(a)(1), 1396d(b) (1976 ed. and Supp. II). Appellees, AFDC recipients residing in Puerto Rico, filed this class action against the Secretary of Health, Education, and Welfare (now the Secretary of Health and Human Services) in March 1977 in the United States District Court for the District of Puerto Rico; they challenged the constitutionality of 42 U.S.C. §§ 1308 and 1396d(b), claiming successfully that the lower level of AFDC reimbursement provided to Puerto Rico violates the Fifth Amendment's equal protection guarantee. 2 We disagree. Congress, which is empowered under the Territory Clause of the Constitution, U.S.Const., Art. IV, § 3, cl. 2, to "make all needful Rules and Regulations respecting the Territory . . . belonging to the United States," may treat Puerto Rico differently from States so long as there is a rational basis for its actions. In Califano v. Torres, 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978) (per curiam ), we concluded that a similar statutory classification was rationally grounded on three factors: Puerto Rican residents do not contribute to the federal treasury; the cost of treating Puerto Rico as a State under the statute would be high; and greater benefits could disrupt the Puerto Rican economy. These same considerations are forwarded here in support of §§ 1308 and 1396d(b), Juris. Statement 12-14,* and we see no reason to depart from our conclusion in Torres that they suffice to form a rational basis for the challenged statutory classification. 3 We reverse. 4 So ordered. 5 Mr. Justice BRENNAN and Mr. Justice BLACKMUN, not now being persuaded that the Court's summary disposition in Califano v. Torres, 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978), so clearly controls this case, would note probable jurisdiction and set the case for oral argument. 6 Mr. Justice MARSHALL, dissenting. 7 The Court today rushes to resolve important legal issues without full briefing or oral argument. The sole authority cited for the majority's result is another summary decision by this Court. The need for such haste is unclear. The dangers of such decisionmaking are clear, however, as the Court's analysis is, in my view, ill-conceived in at least two respects. 8 The first question that merits plenary attention is whether Congress, acting pursuant to the Territory Clause of the Constitution, U.S.Const., Art. IV, § 3, cl. 2, "may treat Puerto Rico differently from States so long as there is a rational basis for its actions." Ante, at 651-652. No authority is cited for this proposition. Our prior decisions do not support such a broad statement. 9 It is important to remember at the outset that Puerto Ricans are United States citizens, see 8 U.S.C. § 1402, and that different treatment to Puerto Rico under AFDC may well affect the benefits paid to these citizens.1 While some early opinions of this Court suggested that various protections of the Constitution do not apply to Puerto Rico, see, e. g. Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901); Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922), the present validity of those decisions is questionable. See Torres v. Puerto Rico, 442 U.S. 465, 475-476, 99 S.Ct. 2425, 2431-2432, 61 L.Ed.2d 1 (1979) (BRENNAN, J., concurring in judgment). We have already held that Puerto Rico is subject to the Due Process Clause of either the Fifth or Fourteenth Amendment, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 668-669, n. 5, 94 S.Ct. 2080, 2084, n. 5, 40 L.Ed.2d 452 (1974), and the equal protection guarantee of either the Fifth or the Fourteenth Amendment, Examining Board v. Flores de Otero, 426 U.S. 572, 599-601, 96 S.Ct. 2264, 2279-2280, 49 L.Ed.2d 65 (1976). The Fourth Amendment is also fully applicable to Puerto Rico, either directly or by operation of the Fourteenth Amendment, Torres v. Puerto Rico, supra, at 471, 99 S.Ct. at 2429. At least four Members of this Court are of the view that all provisions of the Bill of Rights apply to Puerto Rico. 442 U.S., at 475-476, 99 S.Ct., at 2431-2432 (BRENNAN, J., joined by STEWART, MARSHALL, and BLACKMUN, JJ., concurring in judgment). 10 Despite these precedents, the Court suggests today, without benefit of briefing or argument, that Congress needs only a rational basis to support less beneficial treatment for Puerto Rico, and the citizens residing there, than is provided to the States and citizens residing in the States. Heightened scrutiny under the equal protection component of the Fifth Amendment, the Court concludes, is simply unavailable to protect Puerto Rico or the citizens who reside there from discriminatory legislation, as long as Congress acts pursuant to the Territory Clause. Such a proposition surely warrants the full attention of this Court before it is made part of our constitutional jurisprudence. 11 Califano v. Torres, 435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978) (per curiam ), the only authority upon which the majority relies, does not stand for the proposition the Court espouses today. In that decision, also reached through summary procedures and over the objections of two Members of the Court, see id., at 5, 98 S.Ct., at 908 (statement of BRENNAN, J.; statement of MARSHALL, J.), the Court held that the right to travel was not violated by a provision of the Social Security Act pursuant to which persons residing in the United States lost their supplemental security income benefits upon moving to Puerto Rico. While the plaintiffs in that case had also challenged the provision on equal protection grounds, the District Court relied entirely on the right to travel,2 and therefore no equal protection question was before this Court.3 The Court merely referred to the equal protection claim briefly in a footnote, id., at 3, n. 4, 98 S.Ct., at 907, n. 4. Observing that Puerto Rico's relationship with the United States was unique, the Court simply noted that the District Court had "apparently acknowledged that Congress has the power to treat Puerto Rico differently, and that every federal program does not have to be extended to it." Ibid.4 That Puerto Rico has an unparalleled relationship with the United States does not lead ineluctably to the legal principle asserted here. At most, reading, more into that single footnote of dictum than it deserves, Califano v. Torres may suggest that under the equal protection component of the Due Process Clause of the Fifth Amendment, Puerto Rico may be treated differently from the States if there is a rational basis for the discrimination when Congress enacts a law providing for governmental payments of monetary benefits. See id., at 5, 98 S.Ct. at 908. That is a more limited view than is asserted in this case, but even that position should be reached only after oral argument and full briefing. Ibid. (statement of MARSHALL, J.). 12 I also object to the Court's reliance on the effect greater benefits could have on the Puerto Rican economy. Ante, at 652. See also Califano v. Torres, supra, at 5, n. 7, 98 S.Ct. at 908, n. 7. This rationale has troubling overtones. It suggests that programs designed to help the poor should be less fully applied in those areas where the need may be the greatest, simply because otherwise the relative poverty of recipients compared to other persons in the same geographic area will somehow be upset. Similarly, reliance on the fear of disrupting the Puerto Rican economy implies that Congress intended to preserve or even strengthen the comparative economic position of the States vis-a-vis Puerto Rico. Under this theory, those geographic units of the country which have the strongest economies presumably would get the most financial aid from the Federal Government since those units would be the least likely to be "disrupted." Such an approach to a financial assistance program is not so clearly rational as the Court suggests, and there is no citation by the Court to any suggestion in the legislative history that Congress had these economic concerns in mind when it passed the portion of the AFDC program presently being challenged. Nor does appellant refer to any evidence in the record supporting the notion that such a speculative fear of economic disruption is warranted.5 In my view it is by no means clear that the discrimination at issue here could survive scrutiny under even a deferential equal protection standard. 13 Ultimately this case raises the serious issue of the relationship of Puerto Rico, and the United States citizens who reside there, to the Constitution. An issue of this magnitude deserves far more careful attention than it has received in Califano v. Torres and in the present case. I would note probable jurisdiction and set the case for oral argument. Accordingly, I dissent from the Court's summary disposition. * For example, the Secretary estimates that the additional cost of treating Puerto Rico as a State for AFDC purposes alone would be approximately $30 million per year, and, if the decision below were to apply equally to various other reimbursement programs under the Social Security Act, the total annual cost could exceed $240 million. Juris. Statement 12, n. 13. 1 The District Court certified the plaintiff class as "all United States citizens residing in the Commonwealth of Puerto Rico, which [sic ] are recipients of public assistance under the Aid to the Families with Dependent Children category and that have been, are and will be discriminated [against] solely on the basis of their residence." App. to Juris. Statement 2a. It is unclear whether the Court's Territory Clause analysis is intended to apply only where the discrimination is against the Government of Puerto Rico and not against persons residing there. Such a distinction would lack substance in any event. The discrimination against Puerto Rico under the AFDC program must also operate as a discrimination against United States citizens residing in Puerto Rico who would benefit one way or another, from such increased federal aid to Puerto Rico. 2 The District Court concluded that "[w]e are not here concerned with the alleged power of Congress to establish disparate treatment towards the United States citizens who reside in Puerto Rico. Rather, the focus of our attention should be directed to determining whether a constitutional right of a citizen of the United States has been improperly penalized while he is within one of these States. We see this as the more relevant framing of the issues because although Plaintiff lost his benefits while physically in Puerto Rico, the statutory prohibitions that permitted this result came into play from the very moment when they exerted their force upon Plaintiff. From this standpoint, Plaintiff is in the same position now as if he would have remained in Connecticut and brought a declaratory judgment suit there. . . ." Torres v. Mathews, 426 F.Supp. 1106, 1110 (1977) (emphasis deleted). 3 The question presented in Califano v. Torres was whether the sections of the Social Security Act excluding residents of Puerto Rico from the Supplemental Security Income program "deny due process to individuals who upon moving to Puerto Rico lose the benefits to which they were entitled while residing in the United States." Juris. Statement, O.T.1977, No. 77-88, p. 2. See also id., at 9-11. 4 The accuracy of this assessment of the District Court's opinion is open to question. See n. 2, supra. 5 Appellant's suggestion that increased federal reimbursements might not go to the class members at all but instead be used to provide other services or to lower taxes, see Juris. Statement 10, demonstrates the speculative nature of this fear of economic disruption.

12

446 U.S. 643 100 S.Ct. 1925 64 L.Ed.2d 580 CATALANO, INC., et al.v.TARGET SALES, INC., et al. No. 79-1101. May 27, 1980. Rehearing Denied Aug. 11, 1980. See 448 U.S. 911, 101 S.Ct. 26. PER CURIAM. 1 Petitioners, a conditionally certified class of beer retailers in the Fresno, Cal., area, brought suit against respondent wholesalers alleging that they had conspired to eliminate short-term trade credit formerly granted on beer purchases in violation of § 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U.S.C. § 1. The District Court entered an interlocutory order, which among other things, denied petitioners' "motion to declare this a case of per se illegality," and then certified to the United States Court of Appeals for the Ninth Circuit, pursuant to 28 U.S.C. § 1292(b),1 the question whether the alleged agreement among competitors fixing credit terms, if proved, was unlawful on its face.2 The Court of Appeals granted permission to appeal, and, with one judge dissenting, agreed with the District Court that a horizontal agreement among competitors to fix credit terms does not necessarily contravene the antitrust laws. 5th Cir., 605 F.2d 1097 (1979).3 We grant the petition for certiorari and reverse the judgment of the Court of Appeals. 2 For purposes of decision we assume the following facts alleged in the amended complaint4 to be true. Petitioners allege that, beginning in early 1967, respondent wholesalers secretly agreed, in order to eliminate competition among themselves, that as of December 1967 they would sell to retailers only if payment were made in advance or upon delivery. Prior to the agreement, the wholesalers had extended credit without interest up to the 30- and 42-day limits permitted by state law.5 According to the petition, prior to the agreement wholesalers had competed with each other with respect to trade credit, and the credit terms for individual retailers had varied substantially.6 After entering into the agreement, respondents uniformly refused to extend any credit at all. 3 The Court of Appeals decided that the credit-fixing agreement should not be characterized as a form of price fixing. The court suggested that such an agreement might actually enhance competition in two ways: (1) "by removing a barrier perceived by some sellers to market entry," and (2) "by the increased visibility of price made possible by the agreement to eliminate credit." Id., at 1099. 4 In dissent, Judge Blumenfeld7 expressed the opinion that an agreement to eliminate credit was a form of price fixing. Id., at 1104. He reasoned that the extension of interest-free credit is an indirect price reduction and that the elimination of such credit is therefore a method of raising prices: 5 "The purchase of goods creates an obligation to pay for them. Credit is one component of the overall price paid for a product. The cost to a retailer of purchasing goods consists of (1) the amount he has to pay to obtain the goods, and (2) the date on which he has to make that payment. If there is a differential between a purchase for cash and one on time, that difference is not interest but part of the price. See Hogg v. Ruffner, 66 U.S. (1 Black) 115, 118-119, 17 L.Ed. 38 (1861). Allowing a retailer interest-free short-term credit on beer purchases effectively reduces the price of beer, when compared to a requirement that the retailer pay the same amount immediately in cash; and, conversely, the elimination of free credit is the equivalent of a price increase." Id., at 1103. 6 It followed, in his view, that the agreement was just as plainly anticompetitive as a direct agreement to raise prices. Consequently, no further inquiry under the rule of reason, see National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978), was required in order to establish the agreement's unlawfulness. 7 Our cases fully support Judge Blumenfeld's analysis and foreclose both of the possible justifications on which the majority relied.8 In Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 7-8, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979), we said: 8 "In construing and applying the Sherman Act's ban against contracts, conspiracies, and combinations in restraint of trade, the Court has held that certain agreements or practices are so 'plainly anticompetitive,' National Society of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978); Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 50, 97 S.Ct. 2549, 2557 (1977), and so often 'lack . . . any redeeming virtue,' Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), that they are conclusively presumed illegal without further examination under the rule of reason generally applied in Sherman Act cases."9 9 A horizontal agreement to fix prices is the archetypal example of such a practice. It has long been settled that an agreement to fix prices is unlawful per se. It is no excuse that the prices fixed are themselves reasonable. See, e. g., United States v. Trenton Potteries Co., 273 U.S. 392, 397-398, 47 S.Ct. 377, 379, 71 L.Ed. 700 (1927); United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 340-341, 17 S.Ct. 540, 558-559, 41 L.Ed. 1007 (1897). In United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), we held that an agreement among competitors to engage in a program of buying surplus gasoline on the spot market in order to prevent prices from falling sharply was unlawful without any inquiry into the reasonableness of the program, even though there was no direct agreement on the actual prices to be maintained. In the course of the opinion, the Court made clear that 10 "the machinery employed by a combination for price-fixing is immaterial. 11 "Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se." Id., at 223, 60 S.Ct., at 844. 12 Thus, we have held agreements to be unlawful per se that had substantially less direct impact on price than the agreement alleged in this case. For example, in Sugar Institute v. United States, 297 U.S. 553, 601-602, 56 S.Ct. 629, 643, 80 L.Ed. 859 (1936), the Court held unlawful an agreement to adhere to previously announced prices and terms of sale, even though advance price announcements are perfectly lawful and even though the particular prices and terms were not themselves fixed by private agreement. Similarly, an agreement among competing firms of professional engineers to refuse to discuss prices with potential customers until after negotiations have resulted in the initial selection of an engineer was held unlawful without requiring further inquiry. National Society of Professional Engineers v. United States, supra, at 692-693, 98 S.Ct., at 1365-1366. Indeed, a horizontal agreement among competitors to use a specific method of quoting prices may be unlawful. Cf. FTC v. Cement Institute, 333 U.S. 683, 690-693, 68 S.Ct. 793, 798-799, 92 L.Ed. 1010 (1948).10 13 It is virtually self-evident that extending interest-free credit for a period of time is equivalent to giving a discount equal to the value of the use of the purchase price for that period of time. Thus, credit terms must be characterized as an inseparable part of the price.11 An agreement to terminate the practice of giving credit is thus tantamount to an agreement to eliminate discounts, and thus falls squarely within the traditional per se rule against price fixing.12 While it may be that the elimination of a practice of giving variable discounts will ultimately lead in a competitive market to corresponding decreases in the invoice price, that is surely not necessarily to be anticipated. It is more realistic to view an agreement to eliminate credit sales as extinguishing one form of competition among the sellers. In any event, when a particular concerted activity entails an obvious risk of anticompetitive impact with no apparent potentially redeeming value, the fact that a practice may turn out to be harmless in a particular set of circumstances will not prevent its being declared unlawful per se. 14 The majority of the panel of the Court of Appeals suggested, however, that a horizontal agreement to eliminate credit sales may remove a barrier to other sellers who may wish to enter the market. But in any case in which competitors are able to increase the price level or to curtail production by agreement, it could be argued that the agreement has the effect of making the market more attractive to potential new entrants. If that potential justifies horizontal agreements among competitors imposing one kind of voluntary restraint or another on their competitive freedom, it would seem to follow that the more successful an agreement is in raising the price level, the safer it is from antitrust attack. Nothing could be more inconsistent with our cases. 15 Nor can the informing function of the agreement, the increased price visibility, justify its restraint on the individual wholesaler's freedom to select his own prices and terms of sale. For, again, it is obvious that any industrywide agreement on prices will result in a more accurate understanding of the terms offered by all parties to the agreement. As the Sugar Institute case demonstrates, however, there is a plain distinction between the lawful right to publish prices and terms of sale, on the one hand, and an agreement among competitors limiting action with respect to the published prices, on the other. 16 Thus, under the reasoning of our cases, an agreement among competing wholesalers to refuse to sell unless the retailer makes payment in cash either in advance or upon delivery is "plainly anticompetitive." Since it is merely one form of price fixing, and since price-fixing agreements have been adjudged to lack any "redeeming virtue," it is conclusively presumed illegal without further examination under the rule of reason. 17 Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 18 It is so ordered. 1 Title 28 U.S.C. § 1292(b) provides: "When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order." 2 In pertinent part, the District Judge's order read as follows: " 'In the opinion of the Court, this order involves a controlling question of law, whether an agreement among competitors to eliminate the extension of trade credit constitutes a per se violation of Section 1 of the Sherman Act (15 U.S.C. § 1), as to which there is substantial ground for difference of opinion, and that an immediate appeal from the order will materially advance the ultimate termination of the litigation since this issue is central to the conduct of discovery and trial of this case.' " App. D to Pet. for Cert. 3 The District Court had also granted summary judgment against two plaintiffs for failure to establish injury in fact. Those plaintiffs appealed separately. The Court of Appeals consolidated their appeal with the appeal taken pursuant to § 1292(b) and unanimously reversed that portion of the District Court's order. No review is sought in this Court of that ruling. 4 See Record 152. 5 Cal.Bus. & Prof.Code Ann. § 25509 (West Supp.1980). 6 Pet. for Cert. 4. 7 Senior District Judge for the District of Connecticut, sitting by designation. 8 Respondents nowhere suggest a procompetitive justification for a horizontal agreement to fix credit. Their argument is confined to disputing that settled case law establishes that such an agreement is unlawful on its face. 9 The quotation from Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), is drawn from the following passage: "[T]here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation . . . —an inquiry so often wholly fruitless when undertaken. Among the practices which the courts have heretofore deemed to be unlawful in and of themselves [is] price fixing . . . ." 10 The Court there held that an agreement to use a multiple basing point pricing system was an unfair method of competition prohibited by § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, even though the same conduct would also violate § 1 of the Sherman Act. 11 See Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 507, 89 S.Ct. 1252, 1260, 22 L.Ed.2d 495 (1969): "In the usual sale on credit the seller, a single individual or corporation, simply makes an agreement determining when and how much he will be paid for his product. In such a sale the credit may constitute such an inseparable part of the purchase price for the item that the entire transaction could be considered to involve only a single product." See also G. Lamb & C. Shields, Trade Association Law and Practice 129 (rev. ed. 1971) ("Credit terms are increasingly viewed as elements of price, and any interference with the elements of price is regarded as illegal per se under the Sherman Act"). Cf. P. Areeda, Antitrust Analysis 878 (2d ed. 1974) ("To charge cash and credit customers the same price is, economically speaking, to discriminate against the former"); Hogg v. Ruffner, 1 Black 115, 118-119, 17 L.Ed. 38 (1861). 12 Cf. Cement Mfrs. Protective Assn. v. United States, 268 U.S. 588, 600, 45 S.Ct. 586, 590, 69 L.Ed. 1104 (1925), in which the Court upheld an exchange of information concerning credit in order to prevent fraud on the members of the association, but also noted that "[t]he evidence falls far short of establishing any understanding on the basis of which credit was to be extended to customers, or that any co-operation resulted from the distribution of this information, or that there were any consequences from it other than such as would naturally ensue from the exercise of the individual judgment of manufacturers in determining, on the basis of available information, whether to extend credit or to require cash or security from any given customer." See also Swift & Co. v. United States, 196 U.S. 375, 392, 394, 25 S.Ct. 276, 277, 278, 49 L.Ed. 518 (1905); Wall Products Co. v. National Gypsum Co., 326 F.Supp. 295 (N.D.Cal.1971).

78

446 U.S. 608 100 S.Ct. 1905 64 L.Ed.2d 548 Cecil D. ANDRUS, Secretary of the Interior, et al., Petitioners,v.GLOVER CONSTRUCTION COMPANY. No. 79-48. Argued March 24, 1980. Decided May 27, 1980. Syllabus Held : The Buy Indian Act, which permits the Secretary of the Interior to purchase "the products of Indian industry . . . in open market," does not authorize the Department of the Interior's Bureau of Indian Affairs (BIA) to enter into road construction contracts with Indian-owned companies without first advertising for bids pursuant to Title III of the Federal Property and Administrative Services Act of 1949 (FPASA). There is no such authority even if the Buy Indian Act's language "the products of Indian industry" could be construed to embrace road construction, since, while negotiated procurements "otherwise authorized by law" are one of the specified exceptions to Title III's broad directive in 41 U.S.C. § 252(c) that all procurement by the covered executive agencies (including the BIA) proceed through advertising, such exception is omitted from the list of the exceptions specified in § 252(e) to the requirement that § 252(c) not be construed to permit any road construction contract to be negotiated without advertising. From this omission only one inference can be drawn: Congress meant to bar the negotiation of road construction projects under the authority of laws like the Buy Indian Act. Pp. 612-619. 591 F.2d 554, affirmed. Andrew J. Levander, Washington, D. C., pro hac vice, by special leave of Court, for petitioners. D. D. Hayes, Muskogee, Okl., for respondent. Mr. Justice STEWART delivered the opinion of the Court. 1 The Buy Indian Act, 35 Stat. 71, as amended, 25 U.S.C. § 47, directs the Secretary of the Interior to employ Indian labor "[s]o far as may be practicable," and permits him to purchase "the products of Indian industry . . . in open market."1 The question presented in this case is whether the Bureau of Indian Affairs (BIA) of the Department of the Interior2 may, on the authority of this legislation, enter into road construction contracts with Indian-owned companies without first advertising for bids pursuant to Title III of the Federal Property and Administrative Services Act of 1949 (FPASA), 63 Stat. 393, as amended, 41 U.S.C. §§ 251-260. 2 * In 1976, the BIA formally adopted the procurement policy that "all [BIA] purchases or contracts be made or entered into with qualified Indian contractors to the maximum practicable extent."3 To effectuate this objective, the BIA announced that in every procurement situation it would consider dealing with non-Indian contractors only after it had determined that there were "no qualified Indian contractors within the normal competitive area that can fill or are interested in filling the procurement requirement."4 3 In early 1977, the BIA invited three Indian-owned construction companies to submit bids for the repair and improvement of a 5-mile segment of road in Pushmataha County, Okla. The road, commonly called the Honobia Road, is located within an area subject to BIA jurisdiction. The respondent, a non-Indian corporation engaged as a general contractor in roadbuilding and other forms of heavy construction, was not afforded an opportunity to bid.5 On May 25, 1977, BIA awarded the contract to Indian Nations Construction Co., a corporation owned and controlled exclusively by Indians and the only Indian-owned company to have bid on the project. The final negotiated contract price amounted to approximately $1.2 million.6 4 The respondent then filed the present suit in the United States District Court for the Eastern District of Oklahoma, naming as defendants the Secretary of the Interior, the Department of the Interior, BIA, and the BIA contracting officer on the Honobia Road project (petitioners here). The respondent alleged that the petitioners were required by § 3709 of the Revised Statutes, 41 U.S.C. § 5, and Title III of the FPASA to advertise publicly for bids on the Honobia Road project. The respondent further claimed that the actions of the petitioners had denied it due process and equal protection in contravention of the Fifth Amendment of the United States Constitution. As relief, the respondent requested the District Court to set aside the Honobia Road contract and to enjoin the petitioners from engaging in the unadvertised negotiation of contracts on the purported authority of the Buy Indian Act. 5 After the completion of discovery, the District Court granted summary judgment to the respondent. 451 F.Supp. 1102. The court concluded that the procedure followed by the petitioners in awarding the Honobia Road project to the Indian Nations Construction Co. violated the advertising requirements of the FPASA, in particular 41 U.S.C. §§ 252(e) and 253. 451 F.Supp., at 1106. The court rejected the Secretary's contrary administrative construction as inconsistent with the plain language of the FPASA. Id., at 1106-1108. Deciding in favor of the respondent on these statutory grounds, the District Court found it unnecessary to reach the respondent's alternative arguments under the Constitution. Id., at 1108. The court thereupon declared the road construction contract that had been entered into between the petitioners and the Indian Nations Construction Co. to be null and void, and permanently enjoined the petitioners from circumventing the advertising requirements of 41 U.S.C. § 253 in connection with the remainder of the Honobia Road project and future road construction projects. 451 F.Supp., at 1112.7 6 A divided panel of the Court of Appeals for the Tenth Circuit affirmed the judgment. 591 F.2d 554. Relying in large part on the analysis of the District Court, the Court of Appeals held that, whatever might arguably be the breadth of the Buy Indian Act standing alone, it had been pre-empted by the advertising requirements of the FPASA with respect to the procurement of road construction projects. Id., at 557-559. Alternatively, the Court of Appeals observed that it would "require a considerable 'stretch of the imagination' to conclude that the Congress intended the Buy-Indian Act to apply to road construction projects." Id., at 560. The appellate court believed, in short, that the Act's preference for Indian "products" could not easily be read to include the performance of a roadway construction contract by an Indian-owned firm. Id., at 562. In response to the petitioners' contention that the Buy Indian Act should be construed liberally to effectuate its remedial purpose, the court observed that "a primary, significant remedial feature of the advertisement and competitive bidding requirements of the [FPASA] is to obtain the best and lowest bid for the benefit of the American taxpayers in 'high cost' construction categories." Ibid. (emphasis deleted). We granted certiorari, 444 U.S. 962, 100 S.Ct. 448, 62 L.Ed.2d 374 to decide a question of importance in the proper exercise by the BIA of its procurement responsibilities. II 7 The Buy Indian Act was enacted in 1910 as part of legislation that subjected the purchase of Indian supplies by the Department of the Interior to the strictures of § 3709 of the Revised Statutes.8 Section 3709, which had been in existence since 1861,9 required agencies subject to its provisions to advertise for bids on all but a few Government procurements.10 The purpose of the Buy Indian Act was clear. Purchases by the Department of the Interior of "the products of Indian industry" were to be exempt from any requirement of advertising for bids imposed by § 3709 of the Revised Statutes.11 8 The legislation of which the Buy Indian Act was a part was amended from time to time between 1910 and 1965, but none of these changes affected the substance of what had been enacted in 1910. The BIA, as was true of most other departments of the Government, continued to operate under a general mandate that contracts for supplies and services be let in conformity with § 3709 of the Revised Statutes.12 Section 3709, in turn, was recodified (41 U.S.C. § 5) and amended, but its basic mandate remained the same.13 Government procurement was to proceed through advertising for bids unless excepted by § 3709 or "otherwise provided" by laws such as the Buy Indian Act.14 9 In 1965, the law affecting BIA procurement was substantially modified. The regime of detailed contracting requirements contained in Title III of the FPASA, theretofore applicable only to the General Services Administration and to certain special procurements,15 was extended to cover the purchasing procedures of the BIA and most other executive agencies.16 See 41 U.S.C. § 252(a); 40 U.S.C. §§ 472(a), 474. For covered agencies, one consequence of this legislation was to substitute the advertising requirements set out in Title III of the FPASA for those contained in § 3709 of the Revised Statutes. See 41 U.S.C. § 260; S.Rep. No. 274, 89th Cong., 1st Sess., 1, 5 (1965); H.R.Rep. No. 1166, 89th Cong., 1st Sess., 7, 9 (1965), U.S.Code Cong. & Admin.News 1965, p. 4217; 111 Cong.Rec. 27198 (1965) (Rep. Brooks). 10 Under Title III of the FPASA, the BIA must now adhere to the broad statutory mandate that "[a]ll purchases and contracts for property and services shall be made by advertising . . . ." 41 U.S.C. § 252(c). From this directive, the statute specifically excepts only 15 types of procurements, the 15th covering situations where negotiated procurements are "otherwise authorized by law. . . ." § 252(c)(15) (subsection (c)(15)). 11 The Buy Indian Act is clearly a "law" within the contemplation of subsection (c)(15). As 41 U.S.C. § 260 expressly states: "Any provision of law which authorizes an executive agency . . . to procure any property or services without advertising or without regard to [§ 3709 of the Revised Statutes, 41 U.S.C. § 5] shall be construed to authorize the procurement of such property or services pursuant to section 252(c)(15) of this title without regard to the advertising requirements of . . . this title." See also S.Rep. No. 274,supra, at 5; H.R.Rep. No. 1166, supra, at 8; U.S.Code Cong. & Admin.News 1965, p. 4217. As noted above, the Buy Indian Act has from its inception authorized the BIA to "purchas[e] the products of Indian industry" without regard to the advertising requirements of § 3709 of the Revised Statutes. 12 Relying on subsection (c)(15) and § 260, the petitioners argue that the BIA proceeded correctly in awarding the Honobia Road contract to the Indian Nations Construction Co. without prior public advertising for bids. They assert that a road constructed or repaired by an Indian-owned corporation is a "product of Indian industry" within the meaning of the Buy Indian Act and, accordingly, that the Honobia Road project was exempt from the FPASA's advertising rules by operation of subsection (c)(15). 13 It is fairly debatable, we think, simply as a matter of language, whether a road constructed or repaired by an Indian-owned enterprise is a "product of Indian industry" within the meaning of the Buy Indian Act. But even if that Act could in isolation be construed to embrace road construction or repair, the petitioners' argument must still be rejected because of another provision of Title III of the FPASA expressly relating to contracts of the sort at issue here. Title 41 U.S.C. § 252(e) (subsection (e)) states that § 252(c) "shall not be construed to . . . permit any contract for the construction or repair of . . . roads . . . to be negotiated without advertising . . ., unless . . . negotiation of such contract is authorized by the provisions of paragraphs (1), (2), (3), (10), (11), (12), or (14) of subsection (c) of this section."17 Not contained in this list of exceptions is subsection (c)(15). From this omission only one inference can be drawn: Congress meant to bar the negotiation of road construction and repair projects under the authority of laws like the Buy Indian Act. Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent. See Continental Casualty Co. v. United States, 314 U.S. 527, 533.18 14 In an attempt to avoid the obvious import of subsection (e), the petitioners argue that the subsection does not apply at all to cases in which the Buy Indian Act is involved. The petitioners reason that subsection (e) is concerned solely with procurement contracts whose negotiation is "permitted" by § 252, and that the negotiation authority afforded by the Buy Indian Act does not fit this description because that Act is a statute which of its own force operates independently of the FPASA. 15 We read the pertinent statutes differently. In the absence of subsection (c)(15), the Buy Indian Act could independently confer no authority on the BIA to avoid public advertising for competitive bids. Title 40 U.S.C. § 474 provides that "[t]he authority conferred by [the FPASA] shall be in addition and paramount to any authority conferred by any other law and shall not be SUBJECT TO THE PROVISIONS OF ANY LAW INCONSISTENT HEREWITH . . . ." (emphasis supplied.) In view of § 252's broad directive that all procurement proceed through advertising, the Buy Indian Act's contrary mandate would not have survived the 1965 amendments to the FPASA had Title III of the FPASA not contained subsection (c)(15). In short, § 252(c) "permits" negotiation pursuant to the Buy Indian Act and, therefore, such negotiation is limited by the special rule applicable to road construction contained in subsection (e).19 16 We are, nonetheless, urged to disregard the plain meaning of subsection (e) because of the axiom that repeals by implication of longstanding statutory provisions are not favored. See Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm'n, 393 U.S. 186, 193, 89 S.Ct. 354, 358, 21 L.Ed.2d 334. The maxim is said to be particularly compelling here because the older statute is "remedial" legislation for the benefit of Indians. See Morton v. Mancari, 417 U.S. 535, 549-551, 94 S.Ct. 2474, 2482-2483, 41 L.Ed.2d 290. The 1965 amendments to the FPASA did not, however, "repeal" the Buy Indian Act. With the exception of the limited class of contracts enumerated in subsection (e), the FPASA did not in any manner displace the provisions of the Buy Indian Act. Moreover, "[t]he courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, supra, at 551, 94 S.Ct., at 2483. And, although the "rule by which legal ambiguities are resolved to the benefit of the Indians" is to be given "the broadest possible scope," "[a] canon of construction is not a license to disregard clear expressions of . . . congressional intent." DeCoteau v. District County Court, 420 U.S. 425, 447, 95 S.Ct. 1082, 1094, 43 L.Ed.2d 300. 17 For the reasons stated, the judgment of the Court of Appeals is affirmed.20 18 It is so ordered. 1 Title 25 U.S.C. § 47 provides in full: "So far as may be practicable Indian labor shall be employed, and purchases of the products of Indian industry may be made in open market in the discretion of the Secretary of the Interior." 2 The Secretary of the Interior has delegated his responsibilities and powers under the Act to the Commissioner of the BIA. 3 20 BIAM Bull. 1 (Mar. 3, 1976). See also 25 CFR § 162.5a (1978); 41 CFR § 14H-3.215-70 (1977). The Bulletin defined "Indian contractor" as a legal entity that is 100% Indian owned and controlled. An "Indian" was defined as a member of an Indian tribe or as a person otherwise considered to be an Indian by the tribe with which affiliation is claimed. 4 The Bulletin admonished that, in all events, the contract price must be "fair and reasonable." 5 At the time, the respondent was on the list of available contractors maintained by the BIA. Previously, the respondent had competitively bid on and been awarded the contract covering another five miles of the Honobia Road. In procurement parlance, contracts for which bids are publicly invited in advance are said to be let pursuant to "advertising." See 41 U.S.C. § 253; 41 CFR §§ 1-2.101, 1-2.203-1, 1-2.203-2 (1979). All other contacts are "negotiated." See 41 U.S.C. §§ 252(c), 254; 41 CFR § 1-1.301-3 (1979). 6 The BIA's area road engineer had earlier estimated that the job would cost $963,117.48. 7 The court denied the respondent's request that Indian Nations Construction Co. be made to refund the amounts it had been paid for work already performed on the Honobia Road project before the court's entry of judgment. 451 F.Supp., at 1109, 1112. In this connection, the District Court noted that 9.7% of the construction contract had been completed and paid for at the time of its decision. Id., at 1109. 8 The Act of June 25, 1910, ch. 431, § 23, 36 Stat. 861, provided: "That hereafter the purchase of Indian supplies shall be made in conformity with the requirements of section thirty-seven hundred and nine of the Revised Statutes of the United States: Provided, That so far as may be practicable Indian labor shall be employed, and purchases of the products of Indian industry may be made in open market in the discretion of the Secretary of the Interior. All Acts and parts of Acts in conflict with the provisions of this section are hereby repealed." The origins of this legislation lay in a series of Appropriations Acts concerning the Indian Department of the Department of the Interior. Each of these annual Acts contained a provision whose language was similar to that of the present Buy Indian Act. See, e. g., Act of Apr. 30, 1908, ch. 153, 35 Stat. 70; Act of Mar. 1, 1907, ch. 2285, 34 Stat. 1015. 9 See Act of Mar. 2, 1861, ch. 84, § 10, 12 Stat. 220. 10 In 1910, § 3709 of the Revised Statutes provided in pertinent part: "All purchases and contracts for supplies or services, in any of the Departments of the Government, except for personal services, shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles, or performance of the service. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract, at the places and in the manner in which such articles are usually bought and sold, or such services engaged, between individuals." 11 The structure of § 23 of the Act of June 25, 1910, evidences this intent. See n.8, supra. So does the Act's legislative history. The House Report explained that "[w]ith the exceptions noted in the proviso," the Buy Indian Act, § 23 "will bring the Indian Service, like all other branches of the public service, under the provisions of section 3709 of the Revised Statutes. . . ." H.R. Rep. No. 1135, 61st Cong., 2d Sess., 12 (1910). See also 45 Cong.Rec. 6097 (1910) (Rep. Burke). 12 In 1926, § 23 of the 1910 Act was split into two parts for codification purposes. The language that required the BIA to adhere to the advertising rules contained in § 3709 of the Revised Statutes was placed in 25 U.S.C. § 93. The proviso respecting the purchase of Indian goods was located in 25 U.S.C. § 47. No contemporaneous suggestion was made that this separation was intended to affect the substance of either segment of the original Act. In 1940, a further change occurred. As part of an effort to eliminate redundant provisions respecting the operation of federal agencies, 25 U.S.C. § 93 was repealed and 41 U.S.C. § 6a(g) enacted in its place. See Act of Oct. 10, 1940, ch. 851, §§ 2(g), 4(a), 54 Stat. 1110, 1111, 1112. This rearrangement made "no changes in existing law." H.R.Rep. No. 2647, 76th Cong., 3d Sess., 1 (1940). See S.Rep. No. 2135, 76th Cong., 3d Sess., 2 (1940). Then, in 1951, 41 U.S.C. § 6a(g) was repealed. See Act of Oct. 31, 1951, ch. 654, § 1(107), 65 Stat. 705. Obsolescence seems to have led to the demise of 25 U.S.C. § 93 and 41 U.S.C. § 6a(g). See H.R.Rep. No. 1105, 82d Cong., 1st Sess., 2-3 (1951). By 1951, § 3709 of the Revised Statutes had been amended to require advertising in all cases except where small purchases were involved, where a specific exemption in § 3709 applied, or where "otherwise provided in . . . other law." See 41 U.S.C. § 5 (1946 ed.). 13 In 1964, 41 U.S.C. § 5 (1964 ed.) read in pertinent part: "Unless otherwise provided in the appropriation concerned or other law, purchases and contracts for supplies or services for the Government may be made or entered into only after advertising a sufficient time previously for proposals, except (1) when the amount involved in any one case does not exceed $2,500, (2) when the public exigencies require the immediate delivery of the articles or performance of the service, (3) when only one source of supply is available and the Government purchasing or contracting officer shall so certify, or (4) when the services are required to be performed by the contractor in person and are (A) of a technical and professional nature or (B) under Government supervision and paid for on a time basis." 14 Since its codification in 1926 in 25 U.S.C. § 47, the Buy Indian Act has undergone no change in phraseology. 15 See 41 U.S.C. § 252(a) (1964 ed.). 16 79 Stat. 1303. 17 Title 41 U.S.C. § 252(e) provides in full: "This section shall not be construed to (A) authorize the erection, repair, or furnishing of any public building or public improvement, but such authorization shall be required in the same manner as heretofore, or (B) permit any contract for the construction or repair of buildings, roads, sidewalks, sewers, mains, or similar items to be negotiated without advertising as required by section 253 of this title, unless such contract is to be performed outside the continental United States or unless negotiation of such contract is authorized by the provisions of paragraphs (1), (2), (3), (10), (11), (12), or (14) of subsection (c) of this section." No contention has been made that paragraphs (1), (2), (3), (11), (12), or (14) of subsection (c) authorized negotiation of the Honobia Road project. As to paragraph (10), see n. 20, infra. 18 Nothing in the legislative history of the 1965 amendments to the FPASA points in a different direction than does the plain language of the statute. The petitioners cite the following passage found in several of the congressional Committee Reports that accompanied the 1949 version of the FPASA: "For clarity [subsection (e)] provides that [41 U.S.C. § 252] does not authorize or change the existing requirements for authorization for the erection or repair of buildings, roads, sidewalks, or similar items." H.R.Rep. No. 670, 81st Cong., 1st Sess., pt. 1, p. 23 (1949); S.Rep. No. 338, 81st Cong., 1st Sess., 20 (1949); S.Rep. No. 475, 81st Cong., 1st Sess., 25 (1949). This statement, however sheds no light on the proper disposition of the instant case. It referred to the provisions of the FPASA at a time when that legislation governed no more than the General Services Administration and a few special procurements. 19 Alternatively, the petitioners contend that subsection (e) does not govern here because of § 252(a)(2). That provision states that §§ 251 through 260 of Title 41 "d[o] not apply . . . when [those sections are] made inapplicable pursuant to section 474 of title 40 or any other law . . . ." According to the petitioners, the Buy Indian Act is an "other law" within the intendment of § 252(a)(2). We disagree, reading subsection (a)(2) to refer exclusively to statutory provisions that—unlike the Buy Indian Act—in express terms exempt procurements from §§ 251 through 260 of Title 41 or from the FPASA in its entirety. Any broader reading of subsection (a)(2) would render subsection (c)(15) superfluous and would also substantially undermine Congress' desire that the requirements of § 254 apply "to contracts negotiated by executive agencies under any law, not only title III." S.Rep. No. 274, 89th Cong., 1st Sess., 2 (1965); H.R.Rep. No. 1166, 89th Cong., 1st Sess., 2 (1965), U.S.Code Cong. & Admin.News 1965, pp. 4217, 4218. (Emphasis added.) See id., at 2-3, U.S.Code Cong. & Admin.News, 1965, pp. 4217, 4218. 20 The petitioners have requested that, if their basic arguments are rejected, this case, nonetheless, be remanded to the Court of Appeals for further consideration in light of 41 U.S.C. § 252(c)(10), which authorizes the negotiation of Government contracts "for property or services for which it is impracticable to secure competition." The petitioners, however, did not rely on this statutory provision in defending this lawsuit in the District Court, and the Court of Appeals did not consider it. Our affirmance of the judgment of the Court of Appeals does not preclude the petitioners from seeking relief from the outstanding injunction on this ground or any other. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 165, n. 30, 95 S.Ct. 1504, 1523, 44 L.Ed.2d 29. See also Fed.Rule Civ.Proc. 60(b).

12

446 U.S. 635 100 S.Ct. 1920 64 L.Ed.2d 572 Carlos Rivera GOMEZ, Petitioner,v.Astol Calero TOLEDO. No. 79-5601. Argued April 16, 1980. Decided May 27, 1980. Syllabus Held: In an action brought under 42 U.S.C. § 1983 against a public official whose position might entitle him to qualified immunity, the plaintiff is not required to allege that the defendant acted in bad faith in order to state a claim for relief, but the burden is on the defendant to plead good faith as an affirmative defense. By § 1983's plain terms, the plaintiff is required to make only two allegations in order to state a cause of action under the statute: (1) that some person deprived him of a federal right, and (2) that such person acted under color of state or territorial law. This allocation of the burden of pleading is supported by the nature of the qualified-immunity defense, since whether such immunity has been established depends on facts peculiarly within the defendant's knowledge and control, the applicable test focusing not only on whether he has an objectively reasonable basis for his belief that his conduct was lawful but also on whether he has a subjective belief. Pp. 638-641. 602 F.2d 1018 (1st Cir.), reversed and remanded. Michael Avery, Boston, Mass., for petitioner. Federico A. Cedo-Alzamora, San Juan, P. R., for respondent. Mr. Justice MARSHALL delivered the opinion of the Court. 1 The question presented is whether, in an action brought under 42 U.S.C. § 1983 against a public official whose position might entitle him to qualified immunity, a plaintiff must allege that the official has acted in bad faith in order to state a claim for relief or, alternatively, whether the defendant must plead good faith as an affirmative defense. 2 * Petitioner Carlos Rivera Gomez brought this action against respondent, the Superintendent of the Police of the Commonwealth of Puerto Rico, contending that respondent had violated his right to procedural due process by discharging him from employment with the Police Department's Bureau of Criminal Investigation.1 Basing jurisdiction on 28 U.S.C. § 1343(3),2 petitioner alleged the following facts in his complaint.3 Petitioner had been employed as an agent with the Puerto Rican police since 1968. In April 1975, he submitted a sworn statement to his supervisor in which he asserted that two other agents had offered false evidence for use in a criminal case under their investigation. As a result of this statement, petitioner was immediately transferred from the Criminal Investigation Corps for the Southern Area to Police Headquarters in San Juan, and a few weeks later to the Police Academy in Gurabo, where he was given no investigative authority. In the meantime respondent ordered an investigation of petitioner's claims, and the Legal Division of the Police Department concluded that all of petitioner's factual allegations were true. 3 In April 1976, while still stationed at the Police Academy, petitioner was subpoenaed to give testimony in a criminal case arising out of the evidence that petitioner had alleged to be false. At the trial petitioner, appearing as a defense witness, testified that the evidence was in fact false. As a result of this testimony, criminal charges, filed on the basis of information furnished by respondent, were brought against petitioner for the allegedly unlawful wiretapping of the agents' telephones. Respondent suspended petitioner in May 1976 and discharged him without a hearing in July. In October, the District Court of Puerto Rico found no probable cause to believe that petitioner was guilty of the allegedly unlawful wiretapping and, upon appeal by the prosecution, the Superior Court affirmed. Petitioner in turn sought review of his discharge before the Investigation, Prosecution, and Appeals Commission of Puerto Rico, which, after a hearing, revoked the discharge order rendered by respondent and ordered that petitioner be reinstated with back pay. 4 Based on the foregoing factual allegations, petitioner brought this suit for damages, contending that his discharge violated his right to procedural due process, and that it had caused him anxiety, embarrassment, and injury to his reputation in the community. In his answer, respondent denied a number of petitioner's allegations of fact and asserted several affirmative defenses. Respondent then moved to dismiss the complaint for failure to state a cause of action, see Fed.Rule Civ.Proc. 12(b)(6), and the District Court granted the motion. Observing that respondent was entitled to qualified immunity for acts done in good faith within the scope of his official duties, it concluded that petitioner was required to plead as part of his claim for relief that, in committing the actions alleged, respondent was motivated by bad faith. The absence of any such allegation, it held, required dismissal of the complaint. The United States Court of Appeals for the First Circuit affirmed. 602 F.2d 1018 (1979).4 5 We granted certiorari to resolve a conflict among the Courts of Appeals.5 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 666 (1980). We now reverse. II 6 Section 1983 provides a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory." 42 U.S.C. § 1983.6 This statute, enacted to aid in " 'the preservation of human liberty and human rights,' " Owen v. City of Independence, 445 U.S. 622, 636, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980), quoting Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871) (Rep. Shellabarger), reflects a congressional judgment that a "damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees," 445 U.S., at 651, 100 S.Ct., at 1415. As remedial legislation, § 1983 is to be construed generously to further its primary purpose. See 445 U.S., at 636, 100 S.Ct., at 1407-08. 7 In certain limited circumstances, we have held that public officers are entitled to a qualified immunity from damages liability under § 1983. This conclusion has been based on an unwillingness to infer from legislative silence a congressional intention to abrogate immunities that were both "well established at common law" and "compatible with the purposes of the Civil Rights Act." 445 U.S., at 638, 100 S.Ct., at 1409. Findings of immunity have thus been "predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 990, 47 L.Ed.2d 128 (1976). In Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967), for example, we concluded that a police officer would be "excus[ed] from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied." And in other contexts we have held, on the basis of "[c]ommon-law tradition . . . and strong public-policy reasons," Wood v. Strickland, 420 U.S. 308, 318, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975), that certain categories of executive officers should be allowed qualified immunity from liability for acts done on the basis of an objectively reasonable belief that those acts were lawful. See Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) (prison officials); O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (superintendent of state hospital); Wood v. Strickland, supra (local school board members); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (state Governor and other executive officers). Cf. Owen v. City of Independence, supra (no qualified immunity for municipalities). 8 Nothing in the language or legislative history of § 1983, however, suggests that in an action brought against a public official whose position might entitle him to immunity if he acted in good faith, a plaintiff must allege bad faith in order to state a claim for relief. By the plain terms of § 1983, two—and only two—allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. See Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d 492 (1961). Petitioner has made both of the required allegations. He alleged that his discharge by respondent violated his right to procedural due process, see Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and that respondent acted under color of Puerto Rican law. See Monroe v. Pape, supra, at 172-187, 81 S.Ct., at 476-484.7 9 Moreover, this Court has never indicated that qualified immunity is relevant to the existence of the plaintiff's cause of action; instead we have described it as a defense available to the official in question. See Procunier v. Navarette, supra, 434 U.S., at 562, 98 S.Ct., at 859; Pierson v. Ray, supra, 386 U.S., at 556, 557, 87 S.Ct., at 1219; Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978). Since qualified immunity is a defense, the burden of pleading it rests with the defendant. See Fed.Rule Civ.Proc. 8(c) (defendant must plead any "matter constituting an avoidance or affirmative defense"); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1271 (1969). It is for the official to claim that his conduct was justified by an objectively reasonable belief that it was lawful. We see no basis for imposing on the plaintiff an obligation to anticipate such a defense by stating in his complaint that the defendant acted in bad faith. 10 Our conclusion as to the allocation of the burden of pleading is supported by the nature of the qualified immunity defense. As our decisions make clear, whether such immunity has been established depends on facts peculiarly within the knowledge and control of the defendant. Thus we have stated that "[i]t is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." Scheuer v. Rhodes, supra, 416 U.S., at 247-248, 94 S.Ct., at 1692. The applicable test focuses not only on whether the official has an objectively reasonable basis for that belief, but also on whether "[t]he official himself [is] acting sincerely and with a belief that he is doing right," Wood v. Strickland, supra, 420 U.S., at 321, 95 S.Ct., at 1000. There may be no way for a plaintiff to know in advance whether the official has such a belief or, indeed, whether he will even claim that he does. The existence of a subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. For example, the official's belief may be based on state or local law, advice of counsel, administrative practice, or some other factor of which the official alone is aware. To impose the pleading burden on the plaintiff would ignore this elementary fact and be contrary to the established practice in analogous areas of the law.8 11 The decision of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. 12 It is so ordered. 13 Mr. Justice REHNQUIST joins the opinion of the Court, reading it as he does to leave open the issue of the burden of persuasion, as opposed to the burden of pleading, with respect to a defense of qualified immunity. 1 The complaint originally named the Commonwealth of Puerto Rico and the police of the Commonwealth of Puerto Rico as additional defendants, but petitioner consented to their dismissal from the action. See App. 14, n. 1. 2 That section grants the federal district courts jurisdiction "[t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States." 3 At this stage of the proceedings, of course, all allegations of the complaint must be accepted as true. 4 This decision was in accord with earlier decisions in that Circuit. See, e. g., Gaffney v. Silk, 488 F.2d 1248 (1973); Kostka v. Hogg, 560 F.2d 37 (1977); Maiorana v. MacDonald, 596 F.2d 1072 (1979). 5 Other Courts of Appeals have held that the burden of pleading a defense of good faith lies with the defendant. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1348 (CA2 1972); Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 61-62 (CA3) (en banc), cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976); Bryan v. Jones, 530 F.2d 1210, 1213 (CA5) (en banc), cert. denied, 429 U.S. 865, 97 S.Ct. 174, 50 L.Ed.2d 145 (1976); Jones v. Perrigan, 459 F.2d 81, 83 (CA6 1972); Tritsis v. Backer, 501 F.2d 1021, 1022-1023 (CA7 1974); Landrum v. Moats, 576 F.2d 1320, 1324-1325, 1329 (CA8), cert. denied, 439 U.S. 912, 99 S.Ct. 282, 58 L.Ed.2d 258 (1978); Martin v. Duffie, 463 F.2d 464, 468 (CA10 1972); Dellums v. Powell, 184 U.S.App.D.C. 275, 284-285, 566 F.2d 167, 175-176 (1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). Cf. McCray v. Burrell, 516 F.2d 357, 370 (CA4 1975) (en banc) (burden of proof), cert. dism'd, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976); Gilker v. Baker, 576 F.2d 245 (CA9 1978) (same). 6 Section 1983 provides in full: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 7 Actions under Puerto Rican law come within both § 1983 and its jurisdictional predicate, 28 U.S.C. § 1343(3). Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976). 8 As then Dean Charles Clark stated over 40 years ago: "It seems to be considered only fair that certain types of things which in common law pleading were matters in confession and avoidance—i. e., matters which seemed more or less to admit the general complaint and yet to suggest some other reason why there was no right—must be specifically pleaded in the answer, and that has been a general rule." ABA, Proceedings Institute at Washington and Symposium at New York City on the Federal Rules of Civil Procedure 49 (1939). See also 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1270-1271 (1969). Cf. FTC v. A. E. Staley Mfg. Co., 324 U.S. 746, 759, 65 S.Ct. 971, 977, 89 L.Ed. 1338 (1945) (good-faith defense under Robinson-Patman Act); Barcellona v. Tiffany English Pub. Inc., 597 F.2d 464, 468 (CA5 1979); Cohen v. Ayers, 596 F.2d 733, 739-740 (CA7 1979); United States v. Kroll, 547 F.2d 393 (CA7 1977).

12

446 U.S. 544 100 S.Ct. 1870 64 L.Ed.2d 497 UNITED STATES, Petitioner,v.Sylvia L. MENDENHALL. No. 78-1821. Argued Feb. 19, 1980. Decided May 27, 1980. Rehearing Denied June 30, 1980. See 448 U.S. 908, 100 S.Ct. 3051. Syllabus * Respondent, prior to trial in Federal District Court on a charge of possessing heroin with intent to distribute it, moved to suppress the introduction in evidence of the heroin on the ground that it had been acquired through an unconstitutional search and seizure by Drug Enforcement Administration (DEA) agents. At the hearing on the motion, it was established that when respondent arrived at the Detroit Metropolitan Airport on a flight from Los Angeles, two DEA agents, observing that her conduct appeared to be characteristic of persons unlawfully carrying narcotics, approached her as she was walking through the concourse, identified themselves as federal agents, and asked to see her identification and airline ticket. After respondent produced her driver's license, which was in her name, and her ticket, which was issued in another name, the agents questioned her briefly as to the discrepancy and as to how long she had been in California. After returning the ticket and driver's license to her, one of the agents asked respondent if she would accompany him to the airport DEA office for further questions, and respondent did so. At the office the agent asked respondent if she would allow a search of her person and handbag and told her that she had the right to decline the search if she desired. She responded: "Go ahead," and handed her purse to the agent. A female police officer, who arrived to conduct the search of respondent's person, also asked respondent if she consented to the search, and respondent replied that she did. When the policewoman explained that respondent would have to remove her clothing, respondent stated that she had a plane to catch and was assured that if she was carrying no narcotics there would be no problem. Respondent began to disrobe without further comment and took from her undergarments two packages, one of which appeared to contain heroin, and handed them to the policewoman. Respondent was then arrested for possessing heroin. The District Court denied the motion to suppress, concluding that the agents' conduct in initially approaching the respondent and asking to see her ticket and identification was a permissible investigative stop, based on facts justifying a suspicion of criminal activity, that respondent had accompanied the agents to the DEA office voluntarily, and that respondent voluntarily consented to the search in the DEA office. Respondent was convicted after trial, but the Court of Appeals reversed, finding that respondent had not validly consented to the search. Held : The judgment is reversed, and the case is remanded. Pp. 550-560 (opinion of STEWART, J.); pp. 560-566 (opinion of POWELL, J.). 596 F.2d 706, reversed and remanded. Mr. Justice STEWART delivered the opinion of the Court with respect to parts I, II-B, II-C, and III, concluding: 1 1. Respondent's Fourth Amendment rights were not violated when she went with the agents from the concourse to the DEA office. Whether her consent to accompany the agents was in fact voluntary or was the product of duress or coercion is to be determined by the totality of all the circumstances. Under this test, the evidence—including evidence that respondent was not told that she had to go to the office, but was simply asked if she would accompany the officers, and that there were neither threats nor any show of force—was plainly adequate to support the District Court's finding that respondent voluntarily consented to accompany the officers. The facts that the respondent was 22 years old, had not been graduated from high school, and was a Negro accosted by white officers, while not irrelevant, were not decisive. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. Pp. 557-558. 2 2. The evidence also clearly supported the District Court's view that respondent's consent to the search of her person at the DEA office was freely and voluntarily given. She was plainly capable of a knowing consent, and she was twice expressly told by the officers that she was free to withhold consent and only thereafter explicitly consented to the search. The trial court was entitled to view her statement, made when she was told that the search would require the removal of her clothing, that "she had a plane to catch," as simply an expression of concern that the search be conducted quickly, not as indicating resistance to the search. Pp. 558-559. 3 Mr. Justice STEWART, joined by Mr. Justice REHNQUIST, concluded in Part II-A, that no "seizure" of respondent, requiring objective justification, occurred when the agents approached her on the concourse and asked questions of her. A person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave, and as long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would require some particularized and objective justification. Nothing in the record suggests that respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way. Pp. 551-557. 4 Mr. Justice POWELL, joined by THE CHIEF JUSTICE and Mr. Justice BLACKMUN, concluded that the question whether the DEA agents "seized" respondent within the meaning of the Fourth Amendment should not be reached because neither of the courts below considered the question; and that, assuming that the stop did constitute a seizure, the federal agents, in light of all the circumstances, had reasonable suspicion that respondent was engaging in criminal activity and, therefore, did not violate the Fourth Amendment by stopping her for routine questioning. Pp. 560-566. 5 Andrew L. Frey, Washington, D. C., for petitioner. 6 F. Randall Karfonta, Detroit, Mich., for respondent. 7 Mr. Justice STEWART announced the judgment of the Court and delivered an opinion, in which Mr. Justice REHNQUIST joined.** 8 The respondent was brought to trial in the United States District Court for the Eastern District of Michigan on a charge of possessing heroin with intent to distribute it. She moved to suppress the introduction at trial of the heroin as evidence against her on the ground that it had been acquired from her through an unconstitutional search and seizure by agents of the Drug Enforcement Administration (DEA). The District Court denied the respondent's motion, and she was convicted after a trial upon stipulated facts. The Court of Appeals, 596 F.2d 706, reversed, finding the search of the respondent's person to have been unlawful. We granted certiorari to consider whether any right of the respondent guaranteed by the Fourth Amendment was violated in the circumstances presented by this case. 444 U.S. 822, 100 S.Ct. 42, 62 L.Ed.2d 29. 9 * At the hearing in the trial court on the respondent's motion to suppress, it was established how the heroin she was charged with possessing had been obtained from her. The respondent arrived at the Detroit Metropolitan Airport on a commercial airline flight from Los Angeles early in the morning on February 10, 1976. As she disembarked from the airplane, she was observed by two agents of the DEA, who were present at the airport for the purpose of detecting unlawful traffic in narcotics. After observing the respondent's conduct, which appeared to the agents to be characteristic of persons unlawfully carrying narcotics,1 the agents approached her as she was walking through the concourse, identified themselves as federal agents, and asked to see her identification and airline ticket. The respondent produced her driver's license, which was in the name of Sylvia Mendenhall, and, in answer to a question of one of the agents, stated that she resided at the address appearing on the license. The airline ticket was issued in the name of "Annette Ford." When asked why the ticket bore a name different from her own, the respondent stated that she "just felt like using that name." In response to a further question, the respondent indicated that she had been in California only two days. Agent Anderson then specifically identified himself as a federal narcotics agent and, according to his testimony, the respondent "became quite shaken, extremely nervous. She had a hard time speaking." 10 After returning the airline ticket and driver's license to her, Agent Anderson asked the respondent if she would accompany him to the airport DEA office for further questions. She did so, although the record does not indicate a verbal response to the request. The office, which was located up one flight of stairs about 50 feet from where the respondent had first been approached, consisted of a reception area adjoined by three other rooms. At the office the agent asked the respondent if she would allow a search of her person and handbag and told her that she had the right to decline the search if she desired. She responded: "Go ahead." She then handed Agent Anderson her purse, which contained a receipt for an airline ticket that had been issued to "F. Bush" three days earlier for a flight from Pittsburgh through Chicago to Los Angeles. The agent asked whether this was the ticket that she had used for her flight to California, and the respondent stated that it was. 11 A female police officer then arrived to conduct the search of the respondent's person. She asked the agents if the respondent had consented to be searched. The agents said that she had, and the respondent followed the policewoman into a private room. There the policewoman again asked the respondent if she consented to the search, and the respondent replied that she did. The policewoman explained that the search would require that the respondent remove her clothing. The respondent stated that she had a plane to catch and was assured by the policewoman that if she were carrying no narcotics, there would be no problem. The respondent then began to disrobe without further comment. As the respondent removed her clothing, she took from her undergarments two small packages, one of which appeared to contain heroin, and handed both to the policewoman. The agents then arrested the respondent for possessing heroin. 12 It was on the basis of this evidence that the District Court denied the respondent's motion to suppress. The court concluded that the agents' conduct in initially approaching the respondent and asking to see her ticket and identification was a permissible investigative stop under the standards of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, finding that this conduct was based on specific and articulable facts that justified a suspicion of criminal activity. The court also found that the respondent had not been placed under arrest or otherwise detained when she was asked to accompany the agents to the DEA office, but had accompanied the agents " 'voluntarily in a spirit of apparent cooperation.' " It was the court's view that no arrest occurred until after the heroin had been found. Finally, the trial court found that the respondent "gave her consent to the search [in the DEA office] and . . . such consent was freely and voluntarily given." 13 The Court of Appeals reversed the respondent's subsequent conviction, stating only that "the court concludes that this case is indistinguishable from United States v. McCaleb," 552 F.2d 717 (CA6 1977).2 In McCaleb the Court of Appeals had suppressed heroin seized by DEA agents at the Detroit Airport in circumstances substantially similar to those in the present case.3 The Court of Appeals there disapproved the Government's reliance on the so-called "drug courier profile," and held that the agents could not reasonably have suspected criminal activity in that case, for the reason that "the activities of the [persons] observed by DEA agents, were consistent with innocent behavior," id., at 720. The Court of Appeals further concluded in McCaleb that, even if the initial approach had been permissible, asking the suspects to accompany the agents to a private room for further questioning constituted an arrest requiring probable cause. Finally, the court in McCaleb held that the consent to the search in that case had not been voluntarily given, principally because it was the fruit of what the court believed to have been an unconstitutional detention. 14 On rehearing en banc of the present case, the Court of Appeals reaffirmed its original decision, stating simply that the respondent had not validly consented to the search "within the meaning of [McCaleb ]." 596 F.2d 706, 707. II 15 The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." There is no question in this case that the respondent possessed this constitutional right of personal security as she walked through the Detroit Airport, for "the Fourth Amendment protects people, not places," Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576. Here the Government concedes that its agents had neither a warrant nor probable cause to believe that the respondent was carrying narcotics when the agents conducted a search of the respondent's person. It is the Government's position, however, that the search was conducted pursuant to the respondent's consent,4 and thus was excepted from the requirements of both a warrant and probable cause. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. Evidently, the Court of Appeals concluded that the respondent's apparent consent to the search was in fact not voluntarily given and was in any event the product of earlier official conduct violative of the Fourth Amendment. We must first consider, therefore, whether such conduct occurred, either on the concourse or in the DEA office at the airport. 16 The Fourth Amendment's requirement that searches and seizures be founded upon an objective justification, governs all seizures of the person, "including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 [89 S.Ct. 1394, 22 L.Ed.2d 676] (1969); Terry v. Ohio, 392 U.S. 1, 16-19 [88 S.Ct. 1868, 1877, 20 L.Ed.2d 889] (1968)." United States v. Brignoni-Ponce, supra, at 878, 95 S.Ct., at 2578.5 Accordingly, if the respondent was "seized" when the DEA agents approached her on the concourse and asked questions of her, the agents' conduct in doing so was constitutional only if they reasonably suspected the respondent of wrongdoing. But "[o]bviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S., at 19, n. 16, 88 S.Ct., at 1879, n. 16. 17 The distinction between an intrusion amounting to a "seizure" of the person and an encounter that intrudes upon no constitutionally protected interest is illustrated by the facts of Terry v. Ohio, which the Court recounted as follows: "Officer McFadden approached the three men, identified himself as a police officer and asked for their names. . . . When the men 'mumbled something' in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing." Id., at 6-7, 88 S.Ct., at 1872. Obviously the officer "seized" Terry and subjected him to a "search" when he took hold of him, spun him around, and patted down the outer surfaces of his clothing, id., at 19, 88 S.Ct., at 1879. What was not determined in that case, however, was that a seizure had taken place before the officer physically restrained Terry for purposes of searching his person for weapons. The Court "assume[d] that up to that point no intrusion upon constitutionally protected rights had occurred." Id., at 19, n. 16, 88 S.Ct., at 1879, n. 16. The Court's assumption appears entirely correct in view of the fact, noted in the concurring opinion of Mr. Justice WHITE, that "[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets," id., at 34, 88 S.Ct., at 1886. Police officers enjoy "the liberty (again, possessed by every citizen) to address questions to other persons," id., at 31, 32-33, 88 S.Ct., at 1885-1886 (Harlan, J., concurring), although "ordinarily the person addressed has an equal right to ignore his interrogator and walk away." Ibid. 18 Similarly, the Court in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, a case decided the same day as Terry v. Ohio, indicated that not every encounter between a police officer and a citizen is an intrusion requiring an objective justification. In that case, a police officer, before conducting what was later found to have been an unlawful search, approached Sibron in a restaurant and told him to come outside, which Sibron did. The Court had no occasion to decide whether there was a "seizure" of Sibron inside the restaurant antecedent to the seizure that accompanied the search. The record was "barren of any indication whether Sibron accompanied [the officer] outside in submission to a show of force or authority which left him no choice, or whether he went voluntarily in a spirit of apparent cooperation with the officer's investigation." 392 U.S., at 63, 88 S.Ct., at 1903 (emphasis added). Plainly, in the latter event, there was no seizure until the police officer in some way demonstrably curtailed Sibron's liberty. 19 We adhere to the view that a person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification. 20 Moreover, characterizing every street encounter between a citizen and the police as a "seizure," while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. "Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515, [83 S.Ct. 1336, 1344, 10 L.Ed.2d 513]." Schneckloth v. Bustamonte, 412 U.S., at 225, 93 S.Ct., at 2046. 21 We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.6 Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. See Terry v. Ohio, supra, 392 U.S., at 19, n. 16, 88 S.Ct., at 1879, n. 16; Dunaway v. New York, 442 U.S. 200, 207, and n. 6, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824; 3 W. LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. 22 On the facts of this case, no "seizure" of the respondent occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent's identification and ticket. Such conduct without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. See Terry v. Ohio, 392 U.S., at 31, 32-33, 88 S.Ct., at 1885-1886 (Harlan, J., concurring). See also ALI, Model Code of Pre-Arraignment Procedure § 110.1(1) and commentary, at 257-261 (1975). In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents' initial approach to her was not a seizure. 23 Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed. See Schneckloth v. Bustamonte, supra. We also reject the argument that the only inference to be drawn from the fact that the respondent acted in a manner so contrary to her self-interest is that she was compelled to answer the agents' questions. It may happen that a person makes statements to law enforcement officials that he later regrets, but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily. 24 The Court's decision last Term in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357, on which the respondent relies, is not apposite. It could not have been plainer under the circumstances there presented that Brown was forcibly detained by the officers. In that case, two police officers approached Brown in an alley, and asked him to identify himself and to explain his reason for being there. Brown "refused to identify himself and angrily asserted that the officers had no right to stop him," id., at 49, 99 S.Ct., at 2639. Up to this point there was no seizure. But after continuing to protest the officers' power to interrogate him, Brown was first frisked, and then arrested for violation of a state statute making it a criminal offense for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information." The Court simply held in that case that because the officers had no reason to suspect Brown of wrongdoing, there was no basis for detaining him, and therefore no permissible foundation for applying the state statute in the circumstances there presented. Id., at 52-53, 99 S.Ct., at 2641-2642. 25 The Court's decisions involving investigatory stops of automobiles do not point in any different direction. In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, the Court held that a roving patrol of law enforcement officers could stop motorists in the general area of an international border for brief inquiry into their residence status only if the officers reasonably suspected that the vehicle might contain aliens who were illegally in the country. Id., at 881-882, 95 S.Ct., at 2580. The Government did not contend in that case that the persons whose automobiles were detained were not seized. Indeed, the Government acknowledged that the occupants of a detained vehicle were required to respond to the officers' questions and on some occasions to produce documents evidencing their eligibility to be in the United States. Id., at 880, 95 S.Ct., at 2579. Moreover, stopping or diverting an automobile in transit, with the attendant opportunity for a visual inspection of areas of the passenger compartment not otherwise observable, is materially more intrusive than a question put to a passing pedestrian, and the fact that the former amounts to a seizure tells very little about the constitutional status of the latter. See also Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; United States v. Martinez-Fuerte, 428 U.S., at 556-559, 96 S.Ct., at 3082-3083. B 26 Although we have concluded that the initial encounter between the DEA agents and the respondent on the concourse at the Detroit Airport did not constitute an unlawful seizure, it is still arguable that the respondent's Fourth Amendment protections were violated when she went from the concourse to the DEA office. Such a violation might in turn infect the subsequent search of the respondent's person. 27 The District Court specifically found that the respondent accompanied the agents to the office " 'voluntarily in a spirit of apparent cooperation,' " quoting Sibron v. New York, 392 U.S., at 63, 88 S.Ct., at 1903. Notwithstanding this determination by the trial court, the Court of Appeals evidently concluded that the agents' request that the respondent accompany them converted the situation into an arrest requiring probable cause in order to be found lawful. But because the trial court's finding was sustained by the record, the Court of Appeals was mistaken in substituting for that finding its view of the evidence. See Jackson v. United States, 122 U.S.App.D.C. 324, 353 F.2d 862 (1965). 28 The question whether the respondent's consent to accompany the agents was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined by the totality of all the circumstances, Schneckloth v. Bustamonte, 412 U.S., at 227, 93 S.Ct., at 2047, and is a matter which the Government has the burden of proving. Id., at 222, 93 S.Ct., at 2045, citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797. The respondent herself did not testify at the hearing. The Government's evidence showed that the respondent was not told that she had to go to the office, but was simply asked if she would accompany the officers. There were neither threats nor any show of force. The respondent had been questioned only briefly, and her ticket and identification were returned to her before she was asked to accompany the officers. 29 On the other hand, it is argued that the incident would reasonably have appeared coercive to the respondent, who was 22 years old and had not been graduated from high school. It is additionally suggested that the respondent, a female and a Negro, may have felt unusually threatened by the officers, who were white males. While these factors were not irrelevant, see Schneckloth v. Bustamonte, supra, 412 U.S., at 226, 93 S.Ct., at 2047, neither were they decisive, and the totality of the evidence in this case was plainly adequate to support the District Court's finding that the respondent voluntarily consented to accompany the officers to the DEA office. C 30 Because the search of the respondent's person was not preceded by an impermissible seizure of her person, it cannot be contended that her apparent consent to the subsequent search was infected by an unlawful detention. There remains to be considered whether the respondent's consent to the search was for any other reason invalid. The District Court explicitly credited the officers' testimony and found that the "consent was freely and voluntarily given," citing Schneckloth v. Bustamonte, supra. There was more than enough evidence in this case to sustain that view. First, we note that the respondent, who was 22 years old and had an 11th-grade education, was plainly capable of a knowing consent. Second, it is especially significant that the respondent was twice expressly told that she was free to decline to consent to the search, and only thereafter explicitly consented to it. Although the Constitution does not require "proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search," id., at 234, 93 S.Ct., at 2051 (footnote omitted), such knowledge was highly relevant to the determination that there had been consent. And, perhaps more important for present purposes, the fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive. 31 Counsel for the respondent has argued that she did in fact resist the search, relying principally on the testimony that when she was told that the search would require the removal of her clothing, she stated to the female police officer that "she had a plane to catch." But the trial court was entitled to view the statement as simply an expression of concern that the search be conducted quickly. The respondent had twice unequivocally indicated her consent to the search, and when assured by the police officer that there would be no problem if nothing were turned up by the search, she began to undress without further comment. 32 Counsel for the respondent has also argued that because she was within the DEA office when she consented to the search, her consent may have resulted from the inherently coercive nature of those surroundings. But in view of the District Court's finding that the respondent's presence in the office was voluntary, the fact that she was there is little or no evidence that she was in any way coerced. And in response to the argument that the respondent would not voluntarily have consented to a search that was likely to disclose the narcotics that she carried, we repeat that the question is not whether the respondent acted in her ultimate self-interest, but whether she acted voluntarily.7 III 33 We conclude that the District Court's determination that the respondent consented to the search of her person "freely and voluntarily" was sustained by the evidence and that the Court of Appeals was, therefore, in error in setting it aside. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings. 34 It is so ordered. 35 Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring in part and concurring in the judgment. 36 I join Parts I, II-B, II-C, and III of the Court's opinion. Because neither of the courts below considered the question, I do not reach the Government's contention that the agents did not "seize" the respondent within the meaning of the Fourth Amendment. In my view, we may assume for present purposes that the stop did constitute a seizure.1 I would hold—as did the District Court that the federal agents had reasonable suspicion that the respondent was engaging in criminal activity, and, therefore, that they did not violate the Fourth Amendment by stopping the respondent for routine questioning. 37 * The relevant facts may be stated briefly. The respondent arrived at the Detroit Metropolitan Airport on a flight from Los Angeles. She was the last passenger to leave the aircraft. Two agents of the Drug Enforcement Administration watched the respondent enter the terminal, walk to the baggage area, then change directions and proceed to an Eastern Airlines ticket counter. After the respondent accepted a boarding pass for a flight to Pittsburgh, the two agents approached her. They identified themselves as federal officers, and requested some identification. The respondent gave them her driver's license and airline ticket. The agents asked the respondent several brief questions. The respondent accompanied the agents to an airport office where a body search conducted by a female police officer revealed two plastic bags of heroin. II 38 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), establishes that a reasonable investigative stop does not offend the Fourth Amendment.2 The reasonableness of a stop turns on the facts and circumstances of each case. In particular, the Court has emphasized (i) the public interest served by the seizure, (ii) the nature and scope of the intrusion, and (iii) the objective facts upon which the law enforcement officer relied in light of his knowledge and expertise. See Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 2641, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S.Ct. 1391, 1396, 1397, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 879-883, 95 S.Ct. 2574, 2579-2581, 45 L.Ed.2d 607 (1975); Terry v. Ohio, supra, 392 U.S., at 20-22, 88 S.Ct., at 1879, 1880. 39 The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs, including heroin, may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement. 40 To meet this pressing concern, the Drug Enforcement Administration since 1974 has assigned highly skilled agents to the Detroit Airport as part of a nationwide program to intercept drug couriers transporting narcotics between major drug sources and distribution centers in the United States. Federal agents have developed "drug courier profiles" that describe the characteristics generally associated with narcotics traffickers. For example, because the Drug Enforcement Administration believes that most drugs enter Detroit from one of four "source" cites (Los Angeles, San Diego, Miami, or New York), agents pay particular attention to passengers who arrive from those places. See United States v. Van Lewis, 409 F.Supp. 535, 538 (ED Mich.1976), aff'd, 556 F.2d 385 (CA6 1977). During the first 18 months of the program, agents watching the Detroit Airport searched 141 persons in 96 encounters. They found controlled substances in 77 of the encounters and arrested 122 persons. 409 F.Supp., at 539. When two of these agents stopped the respondent in February 1976, they were carrying out a highly specialized law enforcement operation designed to combat the serious societal threat posed by narcotics distribution. B 41 Our cases demonstrate that "the scope of [a] particular intrusion, in light of all the exigencies of the case, [is] a central element in the analysis of reasonableness." Terry v. Ohio, supra, 392 U.S., at 18, n. 15, 88 S.Ct., at 1878, n. 15.3 The intrusion in this case was quite modest. Two plainclothes agents approached the respondent as she walked through a public area. The respondent was near airline employees from whom she could have sought aid had she been accosted by strangers. The agents identified themselves and asked to see some identification. One officer asked the respondent why her airline ticket and her driver's license bore different names. The agent also inquired how long the respondent had been in California. Unlike the petitioner in Terry, supra, at 7, 88 S.Ct., at 1872, the respondent was not physically restrained. The agents did not display weapons. The questioning was brief. In these circumstances, the respondent could not reasonably have felt frightened or isolated from assistance. C 42 In reviewing the factors that led the agents to stop and question the respondent, it is important to recall that a trained law enforcement agent may be "able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer." Brown v. Texas, supra, at 52, n. 2, 99 S.Ct., at 2641, n. 2. Among the circumstances that can give rise to reasonable suspicion are the agent's knowledge of the methods used in recent criminal activity and the characteristics of persons engaged in such illegal practices. Law enforcement officers may rely on the "characteristics of the area," and the behavior of a suspect who appears to be evading police contact. United States v. Brignoni-Ponce, 422 U.S., at 884-885, 95 S.Ct., at 2581-2582. "In all situations the officer is entitled to assess the facts in light of his experience." Id., at 885, 95 S.Ct., at 2582. 43 The two officers who stopped the respondent were federal agents assigned to the Drug Enforcement Administration. Agent Anderson, who initiated the stop and questioned the respondent, had 10 years of experience and special training in drug enforcement. He had been assigned to the Detroit Airport, known to be a cross roads for illicit narcotics traffic,4 for over a year and he had been involved in approximately 100 drug-related arrests. App. 7-8. 44 The agents observed the respondent as she arrived in Detroit from Los Angeles. The respondent, who appeared very nervous, engaged in behavior that the agents believed was designed to evade detection. She deplaned only after all other passengers had left the aircraft. Agent Anderson testified that drug couriers often disembark last in order to have a clear view of the terminal so that they more easily can detect government agents. Id., at 9. Once inside the terminal, the respondent scanned the entire gate area and walked "very, very slowly" toward the baggage area. Id., at 10 (testimony of Agent Anderson). When she arrived there, she claimed no baggage. Instead, she asked a skycap for directions to the Eastern Airlines ticket counter located in a different terminal. Agent Anderson stood in line immediately behind the respondent at the ticket counter. Although she carried an American Airlines ticket for a flight from Detroit to Pittsburgh, she asked for an Eastern Airlines ticket. An airline employee gave her an Eastern Airlines boarding pass. Id., at 10-11. Agent Anderson testified that drug couriers frequently travel without baggage and change flights en route to avoid surveillance. Ibid. On the basis of these observations, the agents stopped and questioned the respondent. III 45 The District Court, which had an opportunity to hear Agent Anderson's testimony and judge his credibility, concluded that the decision to stop the respondent was reasonable.5 I agree. The public interest in preventing drug traffic is great, and the intrusion upon the respondent's privacy was minimal. The specially trained agents acted pursuant to a well-planned, and effective, federal law enforcement program. They observed respondent engaging in conduct that they reasonably associated with criminal activity. Furthermore, the events occurred in an airport known to be frequented by drug couriers.6 In light of all of the circumstances, I would hold that the agents possessed reasonable and articulable suspicion of criminal activity when they stopped the respondent in a public place and asked her for identification. 46 The jurisprudence of the Fourth Amendment demands consideration of the public's interest in effective law enforcement as well as each person's constitutionally secured right to be free from unreasonable searches and seizures. In applying a test of "reasonableness," courts need not ignore the considerable expertise that law enforcement officials have gained from their special training and experience. The careful and commendable police work that led to the criminal conviction at issue in this case satisfies the requirements of the Fourth Amendment. 47 Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting. 48 The Court today concludes that agents of the Drug Enforcement Administration (DEA) acted lawfully in stopping a traveler changing planes in an airport terminal and escorting her to a DEA office for a strip-search of her person. This result is particularly curious because a majority of the Members of the Court refuse to reject the conclusion that Ms. Mendenhall was "seized," while a separate majority decline to hold that there were reasonable grounds to justify a seizure. Mr. Justice STEWART concludes that the DEA agents acted lawfully, regardless of whether there were any reasonable grounds for suspecting Ms. Mendenhall of criminal activity, because he finds that Ms. Mendenhall was not "seized" by the DEA agents, even though throughout the proceedings below the Government never questioned the fact that a seizure had occurred necessitating a showing of antecedent reasonable suspicion. Mr. Justice POWELL's opinion concludes that even though Ms. Mendenhall may have been "seized," the seizure was lawful because her behavior while changing planes in the airport provided reasonable suspicion that she was engaging in criminal activity. The Court then concludes, based on the absence of evidence that Ms. Mendenhall resisted her detention, that she voluntarily consented to being taken to the DEA office, even though she in fact had no choice in the matter. This conclusion is inconsistent with our recognition that consent cannot be presumed from a showing of acquiescence to authority, and it cannot be reconciled with our decision last Term in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). 49 * Beginning with Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968), the Court has recognized repeatedly that the Fourth Amendment's proscription of unreasonable "seizures" protects individuals during encounters with police that do not give rise to an arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116 (1976); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). In Terry we "emphatically reject[ed]" the notion that a "stop" "is outside the purview of the Fourth Amendment because . . . [it is not a] 'seizure' within the meaning of the Constitution." 392 U.S., at 16, 88 S.Ct., at 1877. We concluded that "the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness." Id., at 18, n. 15, 88 S.Ct., at 1878. Applying this principle, 50 "[w]e have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have 'probable cause' to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (citations omitted). 51 Throughout the lower court proceedings in this case, the Government never questioned that the initial stop of Ms. Mendenhall was a "seizure" that required reasonable suspicion. Rather, the Government sought to justify the stop by arguing that Ms. Mendenhall's behavior had given rise to reasonable suspicion because it was consistent with portions of the so-called "drug courier profile," an informal amalgam of characteristics thought to be associated with persons carrying illegal drugs.1 Having failed to convince the Court of Appeals that the DEA agents had reasonable suspicion for the stop, the Government seeks reversal here by arguing for the first time that no "seizure" occurred, an argument that Mr. Justice STEWART now accepts, thereby pretermitting the question whether there was reasonable suspicion to stop Ms. Mendenhall. Mr. Justice STEWART's opinion not only is inconsistent with our usual refusal to reverse judgments on grounds not raised below, but it also addresses a fact-bound question with a totality-of-circumstances assessment that is best left in the first instance to the trial court, particularly since the question was not litigated below and hence we cannot be sure is adequately addressed by the record before us.2 52 Mr. Justice STEWART believes that a "seizure" within the meaning of the Fourth Amendment occurs when an individual's freedom of movement is restrained by means of physical force or a show of authority. Although it is undisputed that Ms. Mendenhall was not free to leave after the DEA agents stopped her and inspected her identification, App. 19, Mr. Justice STEWART concludes that she was not "seized" because he finds that, under the totality of the circumstances, a reasonable person would have believed that she was free to leave. While basing this finding on an alleged absence from the record of objective evidence indicating that Ms. Mendenhall was not free to ignore the officer's inquiries and continue on her way, Mr. Justice STEWART'S opinion brushes off the fact that this asserted evidentiary deficiency may be largely attributable to the fact that the "seizure" question was never raised below. In assessing what the record does reveal, the opinion discounts certain objective factors that would tend to support a "seizure" finding,3 while relying on contrary factors inconclusive even under its own illustrations of how a "seizure" may be established.4 Moreover, although Mr. Justice STEWART'S opinion purports to make its "seizure" finding turn on objective factors known to the person accosted, in distinguishing prior decisions holding that investigatory stops constitute "seizures," it does not rely on differences in the extent to which persons accosted could reasonably believe that they were free to leave.5 Even if one believes the Government should be permitted to raise the "seizure" question in this Court, the proper course would be to direct a remand to the District Court for an evidentiary hearing on the question, rather than to decide it in the first instance in this Court.6 II 53 Assuming, as we should, that Ms. Mendenhall was "seized" within the meaning of the Fourth Amendment when she was stopped by the DEA agents, the legality of that stop turns on whether there were reasonable grounds for suspecting her of criminal activity at the time of the stop. Brown v. Texas, 443 U.S., at 51, 99 S.Ct., at 2641. To establish that there was reasonable suspicion for the stop, it was necessary for the police at least to "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S., at 21, 88 S.Ct., at 1880. 54 At the time they stopped Ms. Mendenhall, the DEA agents' suspicion that she was engaged in criminal activity was based solely on their brief observations of her conduct at the airport.7 The officers had no advance information that Ms. Mendenhall, or anyone on her flight, would be carrying drugs. What the agents observed Ms. Mendenhall do in the airport was not "unusual conduct" which would lead an experienced officer reasonably to conclude that criminal activity was afoot, id., at 30, 88 S.Ct., at 1884, but rather the kind of behavior that could reasonably be expected of anyone changing planes in an airport terminal. 55 None of the aspects of Ms. Mendenhall's conduct, either alone or in combination, were sufficient to provide reasonable suspicion that she was engaged in criminal activity. The fact that Ms. Mendenhall was the last person to alight from a flight originating in Los Angeles was plainly insufficient to provide a basis for stopping her. Nor was the fact that her flight originated from a "major source city," for the mere proximity of a person to areas with a high incidence of drug activity or to persons known to be drug addicts, does not provide the necessary reasonable suspicion for an investigatory stop. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Brown v. Texas, supra ; Sibron v. New York, 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968).8 Under the circumstances of this case, the DEA agents' observations that Ms. Mendenhall claimed no luggage and changed airlines were also insufficient to provide reasonable suspicion. Unlike the situation in Terry v. Ohio, 392 U.S., at 28, 88 S.Ct., at 1883, where "nothing in [the suspects'] conduct from the time [the officer] first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate [his] hypothesis" of criminal behavior, Ms. Mendenhall's subsequent conduct negated any reasonable inference that she was traveling a long distance without luggage or changing her ticket to a different airline to avoid detection. Agent Anderson testified that he heard the ticket agent tell Ms. Mendenhall that her ticket to Pittsburgh already was in order and that all she needed was a boarding pass for the flight.9 Thus it should have been plain to an experienced observer that Ms. Mendenhall's failure to claim luggage was attributable to the fact that she was already ticketed through to Pittsburgh on a different airline.10 Because Agent Anderson's suspicion that Ms. Mendenhall was transporting narcotics could be based only on "his inchoate and unparticularized suspicion or 'hunch,' " rather than "specific reasonable inferences which he is entitled to draw from the facts in light of his experience," id., at 27, 88 S.Ct., at 1883, he was not justified in "seizing" Ms. Mendenhall.11 III 56 Whatever doubt there may be concerning whether Ms. Mendenhall's Fourth Amendment interests were implicated during the initial stages of her confrontation with the DEA agents, she undoubtedly was "seized" within the meaning of the Fourth Amendment when the agents escorted her from the public area of the terminal to the DEA office for questioning and a strip-search of her person. In Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), we held that a person who accompanied police officers to a police station for purposes of interrogation undoubtedly "was 'seized' in the Fourth Amendment sense," even though "he was not told he was under arrest." Id., at 207, 203, 99 S.Ct., at 2253, 2251. We found it significant that the suspect was taken to a police station, "was never informed that he was 'free to go,' " and "would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody." Id., at 212, 99 S.Ct., at 2256. Like the "seizure" in Dunaway, the nature of the intrusion to which Ms. Mendenhall was subjected when she was escorted by DEA agents to their office and detained there for questioning and a strip-search was so great that it "was in important respects indistinguishable from a traditional arrest." Ibid. Although Ms. Mendenhall was not told that she was under arrest, she in fact was not free to refuse to go to the DEA officeand was not told that she was.12 Furthermore, once inside the office, Ms. Mendenhall would not have been permitted to leave without submitting to a strip-search.13 Thus, as in Dunaway, 57 "[t]he mere facts that [the suspect] was not told he was under arrest, was not 'booked,' and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, . . . obviously do not make [the suspect's] seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny." Id., at 212-213, 99 S.Ct., at 2256 (citation omitted). 58 Because the intrusion to which Ms. Mendenhall was subjected when she was escorted to the DEA office is of the same character as that involved in Dunaway, probable cause, which concededly was absent, was required to support the intrusion. 59 The Court's suggestion that no Fourth Amendment interest possessed by Ms. Mendenhall was implicated because she consented to go to the DEA office is inconsistent with Dun- away and unsupported in the record. There was no evidence in the record to support the District Court's speculation, made before Dunaway was decided, that Ms. Mendenhall accompanied "Agent Anderson to the airport DEA Office 'voluntarily in a spirit of apparent cooperation with the [agent's] investigation,' Sibron v. New York, 392 U.S. 40, 63 [88 S.Ct. 1889, 1902, 20 L.Ed.2d 917] (1968)." App. to Pet. for Cert. 16a. Ms. Mendenhall did not testify at the suppression hearing and the officers presented no testimony concerning what she said, if anything, when informed that the officers wanted her to come with them to the DEA office. Indeed, the only testimony concerning what occurred between Agent Anderson's "request" and Ms. Mendenhall's arrival at the DEA office is the agent's testimony that if Ms. Mendenhall had wanted to leave at that point she would have been forcibly restrained. The evidence of consent here is even flimsier than that we rejected in Dunaway where it was claimed that the suspect made an affirmative response when asked if he would accompany the officers to the police station. Dunaway v. New York, supra, at 223, 99 S.Ct., at 2261 (REHNQUIST, J., dissenting). Also in Sibron v. New York [i], from which the District Court culled its description of Ms. Mendenhall's "consent," we described a record in a similar state as "totally barren of any indication whether Sibron accompanied Patrolman Martin outside in submission to a show of force or authority which left him no choice, or whether he went voluntarily in a spirit of apparent cooperation with the officer's investigation." 392 U.S., at 63, 88 S.Ct., at 1903.14 60 The Court recognizes that the Government has the burden of proving that Ms. Mendenhall consented to accompany the officers, but it nevertheless holds that the "totality of evidence was plainly adequate" to support a finding of consent. On the record before us, the Court's conclusion can only be based on the notion that consent can be assumed from the absence of proof that a suspect resisted police authority. This is a notion that we have squarely rejected. In Bumper v. North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968), the Court held that the prosecution's "burden of proving that the consent was, in fact, freely and voluntarily given . . . cannot be discharged by showing no more than acquiescence to a claim of lawful authority." (Footnotes omitted.) Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921). While the Government need not prove that Ms. Mendenhall knew that she had a right to refuse to accompany the officers,Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), it cannot rely solely on acquiescence to the officers' wishes to establish the requisite consent. The Court of Appeals properly understood this in rejecting the District Court's "findings" of consent. 61 Since the defendant was not present to testify at the suppression hearing, we can only speculate about her state of mind as her encounter with the DEA agents progressed from surveillance, to detention, to questioning, to seclusion in a private office, to the female officer's command to remove her clothing. Nevertheless, it is unbelievable15 that this sequence of events involved no invasion of a citizen's constitutionally protected interest in privacy. The rule of law requires a different conclusion. 62 Because Ms. Mendenhall was being illegally detained at the time of the search of her person, her suppression motion should have been granted in the absence of evidence to dissipate the taint. * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed.2d 499, 505. ** THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice POWELL also join all but Part II-A of this opinion. 1 The agent testified that the respondent's behavior fit the so-called "drug courier profile"—an informally compiled abstract of characteristics thought typical of persons carrying illicit drugs. In this case the agents thought it relevant that (1) the respondent was arriving on a flight from Los Angeles, a city believed by the agents to be the place of origin for much of the heroin brought to Detroit; (2) the respondent was the last person to leave the plane, "appeared to be very nervous," and "completely scanned the whole area where [the agents] were standing"; (3) after leaving the plane the respondent proceeded past the baggage area without claiming any luggage; and (4) the respondent changed airlines for her flight out of Detroit. 2 The opinion of the Court of Appeals and the opinion of the District Court are both unreported. 3 The McCaleb case, however, involved a circumstance not present here. Although the persons searched in that case were advised of their right to decline to give consent to the search of their luggage, they were also informed that if they refused they would be detained while the agents sought a search warrant. 552 F.2d, at 719. The Court of Appeals in this case evidently considered the distinction irrelevant. 4 The Government has made several alternative arguments in this case. 5 In the District Court and the Court of Appeals, the parties evidently assumed that the respondent was seized when she was approached on the airport concourse and was asked if she would show her identification and airline ticket. In its brief on the merits and oral argument in this Court, however, the Government has argued that no seizure occurred, and the respondent has joined the argument. While the Court ordinarily does not consider matters neither raised before nor decided by the courts below, see Adickes v. Kress & Co., 398 U.S. 144, 147, n. 2, 90 S.Ct. 1598, 1602, n. 2, 26 L.Ed.2d 142, it has done so in exceptional circumstances. See Youakim v. Miller, 425 U.S. 231, 234, 96 S.Ct. 1399, 1401, 47 L.Ed.2d 701; Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 568, 71 L.Ed. 996. We consider the Government's contention that there was no seizure of the respondent in this case, because the contrary assumption, embraced by the trial court and the Court of Appeals, rests on a serious misapprehension of federal constitutional law. And because the determination of the question is essential to the correct disposition of the other issues in the case, we shall treat it as "fairly comprised" by the questions presented in the petition for certiorari. This Court's Rule 23(1)(c). See Procunier v. Navarette, 434 U.S. 555, 559-560, n. 6, 98 S.Ct. 855, 858-859, n. 6, 55 L.Ed.2d 24; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 320-321, n. 6, 91 S.Ct. 1434, 1438-1439, n. 6, 28 L.Ed.2d 788. The evidentiary record in the trial court is adequate to permit consideration of the contention. The material facts are not disputed. A major question throughout the controversy has been whether the respondent was at any time detained by the DEA agents. Counsel for the respondent has argued that she was arrested while proceeding through the concourse. The trial court and the Court of Appeals characterized the incident as an "investigatory stop." But the correctness of the legal characterization of the facts appearing in the record is a matter for this Court to determine. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854; Bumper v. North Carolina, 391 U.S. 543, 548-550, 88 S.Ct. 1788, 1791-1792, 20 L.Ed.2d 797. 6 We agree with the District Court that the subjective intention of the DEA agent in this case to detain the respondent, had she attempted to leave, is irrelevant except insofar as that may have been conveyed to the respondent. 7 It is arguable that the respondent may have thought she was acting in her self-interest, by voluntarily cooperating with the officers in the hope of receiving more lenient treatment. 1 Mr. Justice STEWART concludes in Part II-A that there was no "seizure" within the meaning of the Fourth Amendment. He reasons that such a seizure occurs "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Ante, at 554. Mr. Justice STEWART also notes that " '[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.' " Ante, at 553, quoting Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 (1968) (WHITE, J., concurring). I do not necessarily disagree with the views expressed in Part II-A. For me, the question whether the respondent in this case reasonably could have thought she was free to "walk away" when asked by two Government agents for her driver's license and ticket is extremely close. 2 The Terry Court held that the Warrant Clause of the Fourth Amendment does not apply to a "stop." This category of police conduct must survive only the Fourth Amendment's prohibition of "unreasonable searches and seizures." 392 U.S., at 20, 88 S.Ct., at 1879. 3 For example, in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), we considered the justification necessary for a random stop of a moving vehicle. Such stops, which may take place at night or on infrequently traveled roads, interfere with freedom of movement, are inconvenient, and may be frightening. Id., at 657, 99 S.Ct., at 1397. Thus, we held that police may not stop a moving vehicle without articulable and reasonable suspicion of unlawful activity. We explicitly distinguished our earlier decision in United States v.Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), which did not require individualized suspicion for the stop of a motor vehicle at a fixed checkpoint, because a checkpoint stop constitutes a "lesser intrusion" than a random stop. 440 U.S., at 656, 99 S.Ct., at 1397. The motorist halted at a permanent checkpoint has less reason for anxiety because he " 'can see that other vehicles are being stopped [and] can see visible signs of the officers' authority . . . .' " United States v. Martinez-Fuerte, supra, at 558, 96 S.Ct., at 3083, quoting United States v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975). 4 From 1975 through 1978, more than 135 pounds of heroin and 22 pounds of cocaine were seized at the Detroit Airport. In 1978, 1,536 dosage units of other dangerous drugs were discovered there. See 596 F.2d 706, 708, n. 1 (CA6 1979) (Weick, J., dissenting). 5 Although the Court of Appeals reversed the judgment of the District Court, it did not explicitly reject this conclusion of law. See id., at 707. The dissenting judge noted that the Court of Appeals failed to take issue with the District Court's conclusion that the agents had reasonable suspicion to make the investigatory stop. Id., at 709 (Weick, J.). 6 The results of the Drug Enforcement Agency's efforts at the Detroit Airport, see supra, at 562, support the conclusion that considerable drug traffic flows through the Detroit Airport. Contrary to Mr. Justice WHITE's apparent impression, post, at 573-574, n. 11, I do not believe that these statistics establish by themselves the reasonableness of this search. Nor would reliance upon the "drug courier profile" necessarily demonstrate reasonable suspicion. Each case raising a Fourth Amendment issue must be judged on its own facts. 1 On August 18, 1976, the Government argued in its answer to Ms. Mendenhall's suppression motion that the "investigatory stop" of Ms. Mendenhall was reasonable in light of the observations made by the DEA agents. At the suppression hearing on October 18, 1976, Agent Anderson's testimony focused on explanation of the "drug courier profile," description of Ms. Mendenhall's behavior prior to the stop, and discussion of why he thought it suspicious. The United States Attorney at the suppression hearing told the court that "it is the Government's contention here that we have a valid investigatory stop, followed by a consent to search." App. 28. Noting that "[u]nder Terry v. Ohio, in order for it to be a valid stop," there must be "a reasonable suspicion that there was a crime afoot," the Government argued that the observations and experience of the DEA agents warranted a finding that reasonable suspicion existed to justify the stop. Id., 28-30. The District Court denied the suppression motion, holding that Agent Anderson had reasonable suspicion to justify "a Terry type intrusion in order to determine defendant's identity and obtain more information. . . ." App. to Pet. for Cert. 15a. There is no indication that the Government on appeal, before either the original panel of the Court of Appeals or the en banc court, ever questioned the understanding that the stop of Ms. Mendenhall constituted a "seizure" requiring reasonable suspicion. Neither the majority of the en banc court nor the dissenting judge questioned the District Court's acknowledgment that reasonable suspicion was required to justify the initial stop of Ms. Mendenhall. Even in its petition for certiorari, the Government did not ask this Court to review the question whether a "seizure" had occurred. In the course of arguing that the quantum of suspicion necessary to justify the stop was slight, the Government did note that it was "arguable" that Ms. Mendenhall had not been "seized," but it was content to assume that she had been. Pet. for Cert. 19. 2 Mr. Justice STEWART'S suggestion that "exceptional circumstances" justify entertaining the Government's claim that no seizure occurred, even though it was not raised, below, ante, at 551, n. 5, is as curious as his notion that the evidentiary record "is adequate to permit consideration of the contention." Ante, at 552, n. 5. The principal question throughout the controversy over the initial stop was not "whether the respondent was at any time detained by the DEA agents," ibid., but rather whether there was reasonable suspicion to support the stop. See ante, at 547, n. 1. While there was no material factual dispute concerning what the DEA agents observed that allegedly gave rise to reasonable suspicion, once the Government raised the "seizure" question before this Court, there were substantial differences between the parties concerning the nature of the encounter between Ms. Mendenhall and the DEA agents. Thus the District Court's assumption that Ms. Mendenhall had been "seized" was not based on "a serious misapprehension of federal constitutional law," ante, at 551, n. 5, for it just as easily could have been based on a different understanding of what the facts would show were the "seizure" question addressed in the District Court. Equally deficient is the suggestion in Mr. Justice STEWART'S opinion that "exceptional circumstances" exist because "determination of the ['seizure'] question is essential to the correct disposition of the other issues in the case." Ibid. While the assumption that a "seizure" occurred makes it necessary to reach the question whether there was reasonable suspicion for the stop, it would not affect the way in which that question would be decided when reached. 3 Not the least of these factors is the fact that the DEA agents for a time took Ms. Mendenhall's plane ticket and driver's license from her. It is doubtful that any reasonable person about to board a plane would feel free to leave when law enforcement officers have her plane ticket. 4 Mr. Justice STEWART notes, for example, that a "seizure" might be established even if the suspect did not attempt to leave, by the nature of the language or tone of voice used by the officers, factors that were never addressed at the suppression hearing, very likely because the "seizure" question was not raised. 5 In Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979), and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the prosecution, as here, did not question whether the suspects who had been stopped had been "seized," given its concessions that the suspects would not have been permitted to leave without responding to the officers' requests for identification. In each case the Court recognized that a "seizure" had occurred without inquiring into whether a reasonable person would have believed that he was not free to leave. Mr. Justice STEWART'S present attempt to distinguish the fact that stops of automobiles constitute "seizures," on the ground that it is more intrusive to visually inspect the passenger compartment of a car, confuses the question of the quantum of reasonable suspicion necessary to justify such "seizures" with the question whether a "seizure" has occurred. 6 We found that exceptional circumstances warranted consideration of a question not raised below in Youakim v. Miller, 425 U.S. 231, 234-235, 96 S.Ct. 1399, 1401-1402, 47 L.Ed.2d 701 (1976), which is cited in Mr. Justice STEWART'S opinion, but there we vacated the judgment and remanded the case, holding that "the claim should be aired first in the District Court." Id., at 236, 96 S.Ct., at 1402. Cf. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960) (remanding to the trial court for determination of when an arrest occurred, after deciding probable-cause question). 7 Officer Anderson, the DEA agent who testified at the suppression hearing, stated on cross-examination: "Q. Did you have a tip in this case? "A. No. "Q. You were going strictly on what you saw in the airport, is that right? "A. A number of things, what my observations, her response to statements. "Q. I'm just asking— "A. (Interposing) All right. Itinerary. "Q. You're going on what happened on February 10 without any prior information? "A. Correct. "Q. You did not know that Sylvia Mendenhall was traveling to Detroit with narcotics, did you? "A. No. "Q. Nor any Negro female traveling from Los Angeles on that date carrying narcotics, did you? "A. No." App. 18. 8 If "[t]he inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security," Sibron v. New York, 392 U.S, at 62, 88 S.Ct., at 1902, then the fact that a person is on a flight that originated from a major "source city" certainly is not. 9 Agent Anderson testified on cross-examination at the suppression hearing that he believed Ms. Mendenhall's failure to pick up luggage was suspicious only before he learned that she was changing planes. App. 16. 10 We recognized in Brown v. Texas, 443 U.S., at 52, n. 2, 99 S.Ct., at 2641, n. 2, that "a trained, experienced police officer [may be] able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer." By the same token, Agent Anderson's experience on airport detail may be considered as negating any reasonable inference that Ms. Mendenhall's behavior was suspicious once he learned that she only needed a boarding pass for her flight to Pittsburgh. 11 Mr. Justice POWELL'S conclusion that there were reasonable grounds for suspecting Ms. Mendenhall of criminal activity relies heavily on the assertion that the DEA agents "acted pursuant to a well-planned, and effective, federal law enforcement program." Ante, at 565. Yet there is no indication that the asserted successes of the "drug courier program" have been obtained by reliance on the kind of nearly random stop involved in this case. Indeed, the statistics Mr. Justice POWELL cites on the success of the program at the Detroit Airport, ante, at 562, refer to the results of searches following stops "based upon information acquired from the airline ticket agents, from [the agents'] independent police work," and occasional tips, as well as observations of behavior at the airport. United States v. Van Lewis, 409 F.Supp. 535, 538 (E.D. Mich.1976), aff'd, 556 F.2d 385 (CA6 1977). Here, however, it is undisputed that the DEA agents' suspicion that Ms. Mendenhall was engaged in criminal activity was based solely on their observations of her conduct in the airport terminal. Supra, at 571-572, n. 7. 12 Agent Anderson testified on cross-examination at the suppression hearing: "Q. All right. Now, when you asked her to accompany you to the DEA office for further questioning, if she had wanted to walk away, would you have stopped her? "A. Once I asked her to accompany me? "Q. Yes. "A. Yes, I would have stopped her. "Q. She was not free to leave, was she? "A. Not at that point." App. 19. 13 Agent Anderson testified: "Q. Had she tried to leave that room when she was being accompanied by the female officer, would you have known? "A. If she had attempted to leave the room? "Q. Yes. "A. Well yes, I could say that I would have known. "Q. And if she had tried to leave prior to being searched by the female officer, would you have stopped her? "A. Yes." Id., at 21. 14 In Sibron v. New York, 392 U.S., at 45, 88 S.Ct., at 1893, we noted that the record revealed only that "Sibron sat down and ordered pie and coffee, and, as he was eating, Patrolman Martin approached him and told him to come outside. Once outside, the officer said to Sibron, 'You know what I am after.' " 15 "Will you walk into my parlour?" said the spider to a fly. (You may find you have consented, without ever knowing why.)

01

446 U.S. 620 100 S.Ct. 1912 64 L.Ed.2d 559 UNITED STATES, Petitioner,v.J. Lee HAVENS. No. 79-305. Argued March 19, 1980. Decided May 27, 1980. Rehearing Denied Aug. 11, 1980. See 448 U.S. 911, 101 S.Ct. 25. Syllabus After respondent and another man (McLeroth) arrived at the Miami Airport on a flight from Peru, a customs officer searched McLeroth and found cocaine sewed into makeshift pockets in a T-shirt he was wearing. When McLeroth implicated respondent, respondent was arrested and his luggage was searched without a warrant. A T-shirt from which pieces had been cut that matched the pieces sewn to McLeroth's T-shirt was found in the luggage and seized. The seized T-shirt was suppressed prior to respondent's trial on federal drug charges. At the trial, McLeroth, who had pleaded guilty, testified against respondent, asserting that respondent had supplied him with the altered T-shirt and had sewed the makeshift pockets shut. Respondent, taking the stand in his own defense, acknowledged, in his direct testimony, McLeroth's prior testimony that the cocaine was "taped or draped around his body" but denied that he had "ever engage[d] in that kind of activity" with McLeroth. On cross-examination, the Government called attention to these answers and then asked whether respondent had anything to do with sewing the makeshift pockets on McLeroth's T-shirt. Respondent denied that he had. And when the Government asked him whether he had a T-shirt with pieces missing in his luggage and whether the seized T-shirt was in his luggage, respondent replied to both questions: "Not to my knowledge." After rebuttal testimony for the Government, the seized T-shirt was admitted into evidence over objection, the jury being instructed that the rebuttal evidence was to be considered only for impeaching respondent's credibility. Respondent's conviction was reversed by the Court of Appeals, which held that illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a defendant in the course of his direct examination. Held : A defendant's statements made in response to proper cross-examination reasonably suggested by the defendant's direct examination are subject to otherwise proper impeachment by the Government, albeit by evidence that has been illegally obtained and is inadmissible as substantive evidence of guilt. Cf. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570. Here, respondent's testimony on direct examination could easily be understood as a denial of any connection with McLeroth's T-shirt and as a contradiction of McLeroth's testimony, and the Government on cross-examination reasonably called attention to respondent's answers on direct and then asked whether he had anything to do with sewing the pockets on McLeroth's T-shirt. This was cross-examination growing out of respondent's direct testimony, and the ensuing impeachment did not violate his constitutional rights. Pp. 624-628. 592 F.2d 848, reversed and remanded. Andrew L. Frey, Washington, D. C., for petitioner. William C. Lee, Fort Wayne, Ind., for respondent. Mr. Justice WHITE delivered the opinion of the Court. 1 The petition for certiorari filed by the United States in this criminal case presented a single question: whether evidence suppressed as the fruit of an unlawful search and seizure may nevertheless be used to impeach a defendant's false trial testimony, given in response to proper cross-examination, where the evidence does not squarely contradict the defendant's testimony on direct examination. We issued the writ, 444 U.S. 962, 100 S.Ct. 447, 62 L.Ed.2d 374 (1979). 2 * Respondent was convicted of importing, conspiring to import, and intentionally possessing a controlled substance, cocaine. According to the evidence at his trial, Havens and John McLeroth, both attorneys from Ft. Wayne, Ind., boarded a flight from Lima, Peru, to Miami, Fla. In Miami, a customs officer searched McLeroth and found cocaine sewed into makeshift pockets in a T-shirt he was wearing under his outer clothing. McLeroth implicated respondent, who had previously cleared customs and who was then arrested. His luggage was seized and searched without a warrant. The officers found no drugs but seized a T-shirt from which pieces had been cut that matched the pieces that had been sewn to McLeroth's T-shirt. The T-shirt and other evidence seized in the course of the search were suppressed on motion prior to trial. 3 Both men were charged in a three-count indictment, but McLeroth pleaded guilty to one count and testified against Havens. Among other things, he asserted that Havens had supplied him with the altered T-shirt and had sewed the makeshift pockets shut. Havens took the stand in his own defense and denied involvement in smuggling cocaine. His direct testimony included the following: 4 "Q. And you heard Mr. McLeroth testify earlier as to something to the effect that this material was taped or draped around his body and so on, you heard that testimony? 5 "A. Yes, I did. 6 "Q. Did you ever engage in that kind of activity with Mr. McLeroth and Augusto or Mr. McLeroth and anyone else on that fourth visit to Lima, Peru? 7 "A. I did not." App. 34. 8 On cross-examination, Havens testified as follows: 9 "Q. Now, on direct examination, sir, you testified that on the fourth trip you had absolutely nothing to do with the wrapping of any bandages or tee shirts or anything involving Mr. McLeroth; is that correct? 10 "A. I don't—I said I had nothing to do with any wrapping or bandages or anything, yes. I had nothing to do with anything with McLeroth in connection with this cocaine matter. 11 * * * * * 12 "Q. And your testimony is that you had nothing to do with the sewing of the cotton swatches to make pockets on that tee shirt? 13 "A. Absolutely not. 14 "Q. Sir, when you came through Customs, the Miami International Airport, on October 2, 1977, did you have in your suitcase Size 38-40 medium tee shirts?" Id., at 35. 15 An objection to the latter question was overruled and questioning continued: 16 "Q. On that day, sir, did you have in your luggage a Size 38-40 medium man's tee shirt with swatches of clothing missing from the tail of that tee shirt? 17 "A. Not to my knowledge. 18 * * * * * 19 "Q. Mr. Havens, I'm going to hand you what is Government's Exhibit 9 for identification and ask you if this tee shirt was in your luggage on October 2nd, 1975 [sic]? 20 "A. Not to my knowledge. No." Id., at 46. 21 Respondent Havens also denied having told a Government agent that the T-shirts found in his luggage belonged to McLeroth. 22 On rebuttal, a Government agent testified that Exhibit 9 had been found in respondent's suitcase and that Havens claimed the T-shirts found in his bag, including Exhibit 9, belonged to McLeroth. Over objection, the T-shirt was then admitted into evidence, the jury being instructed that the rebuttal evidence should be considered only for impeaching Havens' credibility. 23 The Court of Appeals reversed, relying on Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), and Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). The court held that illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a defendant in the course of his direct examination. 592 F.2d 848 (CA5 1979). We reverse. II 24 In Agnello v. United States, supra, a defendant charged with conspiracy to sell a package of cocaine testified on direct examination that he had possessed the packages involved but did not know what was in them. On cross-examination, he denied ever having seen narcotics and ever having seen a can of cocaine which was exhibited to him and which had been illegally seized from his apartment. The can of cocaine was permitted into evidence on rebuttal. Agnello was convicted and his conviction was affirmed by the Court of Appeals. This Court reversed, holding that the Fourth Amendment required exclusion of the evidence. The Court pointed out that "[i]n his direct examination, Agnello was not asked and did not testify concerning the can of cocaine" and "did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search." 269 U.S., at 35, 46 S.Ct., at 7. The Court also said, quoting from Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), that the exclusionary rule not only commands that illegally seized evidence "shall not be used before the Court but that it shall not be used at all." 269 U.S., at 35, 46 S.Ct., at 7. 25 The latter statement has been rejected in our later cases, however, and Agnello otherwise limited. In Walder v. United States, supra, the use of evidence obtained in an illegal search and inadmissible in the Government's case in chief was admitted to impeach the direct testimony of the defendant. This Court approved, saying that it would pervert the rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), to hold otherwise. Similarly, in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), statements taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and unusable by the prosecution as part of its own case, were held admissible to impeach statements made by the defendant in the course of his direct testimony. Harris also made clear that the permitted impeachment by otherwise inadmissible evidence is not limited to collateral matters. 401 U.S., at 225, 91 S.Ct., at 645. 26 These cases were understood by the Court of Appeals to hold that tainted evidence, inadmissible when offered as part of the Government's main case, may not be used as rebuttal evidence to impeach a defendant's credibility unless the evidence is offered to contradict a particular statement made by a defendant during his direct examination; a statement made for the first time on cross-examination may not be so impeached. This approach required the exclusion of the T-shirt taken from Havens' luggage because, as the Court of Appeals read the record, Havens was asked nothing on his direct testimony about the incriminating T-shirt or about the contents of his luggage; the testimony about the T-shirt, which the Government desired to impeach first appeared on cross-examination, not on direct. 27 It is true that Agnello involved the impeachment of testimony first brought out on cross-examination and that in Walder, Harris, and Hass, the testimony impeached was given by the defendant while testifying on direct examination. In our view, however, a flat rule permitting only statements on direct examination to be impeached misapprehends the underlying rationale of Walder, Harris and Hass. These cases repudiated the statement in Agnello that no use at all may be made of illegally obtained evidence. Furthermore, in Walder, the Court said that in Agnello, the Government had "smuggled in" the impeaching opportunity in the course of cross-examination. The Court also relied on the statement in Agnello, supra, at 35, 46 S.Ct., at 7, that Agnello had done nothing "to justify cross-examination in respect of the evidence claimed to have been obtained by the search." The implication of Walder is that Agnello was a case of cross-examination having too tenuous a connection with any subject opened upon direct examination to permit impeachment by tainted evidence. 28 In reversing the District Court in the case before us, the Court of Appeals did not stop to consider how closely the cross-examination about the T-shirt and the luggage was connected with matters gone into in direct examination. If these questions would have been suggested to a reasonably competent cross-examiner by Havens' direct testimony, they were not "smuggled in"; and forbidding the Government to impeach the answers to these questions by using contrary and reliable evidence in its possession fails to take account of our cases, particularly Harris and Hass. In both cases, the Court stressed the importance of arriving at the truth in criminal trials, as well as the defendant's obligation to speak the truth in response to proper questions. We rejected the notion that the defendant's constitutional shield against having illegally seized evidence used against him could be "perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." 401 U.S., at 226, 91 S.Ct., at 646. See also Oregon v. Hass, supra, at 722, 723, 95 S.Ct., at 1221. Both cases also held that the deterrent function of the rules excluding unconstitutionally obtained evidence is sufficiently served by denying its use to the government on its direct case. It was only a "speculative possibility" that also making it unavailable to the government for otherwise proper impeachment would contribute substantially in this respect. Harris v. New York, supra, at 225, 91 S.Ct., at 645. Oregon v. Hass, supra, at 723, 95 S.Ct., at 1221. 29 Neither Harris nor Hass involved the impeachment of assertedly false testimony first given on cross-examination, but the reasoning of those cases controls this one. There is no gainsaying that arriving at the truth is a fundamental goal of our legal system. Oregon v. Hass, supra, at 722, 95 S.Ct., at 1221. We have repeatedly insisted that when defendants testify, they must testify truthfully or suffer the consequences. This is true even though a defendant is compelled to testify against his will. Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264 (1969); United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969). It is essential, therefore, to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth. The defendant's obligation to testify truthfully is fully binding on him when he is cross-examined. His privilege against self-incrimination does not shield him from proper questioning. Brown v. United States, 356 U.S. 148, 154-155, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958). He would unquestionably be subject to a perjury prosecution if he knowingly lies on cross-examination. Cf. United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980); Bryson v. United States, supra; United States v. Knox, supra; United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977). In terms of impeaching a defendant's seemingly false statements with his prior inconsistent utterances or with other reliable evidence available to the government, we see no difference of constitutional magnitude between the defendant's statements on direct examination and his answers to questions put to him on cross-examination that are plainly within the scope of the defendant's direct examination. Without this opportunity, the normal function of cross-examination would be severely impeded. 30 We also think that the policies of the exclusionary rule no more bar impeachment here than they did in Walder, Harris, and Hass. In those cases, the ends of the exclusionary rules were thought adequately implemented by denying the government the use of the challenged evidence to make out its case in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies was deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial. We reaffirm this assessment of the competing interests, and hold that a defendant's statements made in response to proper cross-examination reasonably suggested by the defendant's direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained and that is inadmissible on the government's direct case, or otherwise, as substantive evidence of guilt. 31 In arriving at its judgment, the Court of Appeals noted that in response to defense counsel's objection to the impeaching evidence on the ground that the matter had not been "covered on direct," the trial court had remarked that "[i]t does not have to be covered on direct." The Court of Appeals thought this was error since in its view illegally seized evidence could be used only to impeach a statement made on direct examination. As we have indicated, we hold a contrary view; and we do not understand the District Court to have indicated that the Government's question, the answer to which is sought to be impeached, need not be proper cross-examination in the first instance. The Court of Appeals did not suggest that either the cross-examination or the impeachment of Havens would have been improper absent the use of illegally seized evidence, and we cannot accept respondent's suggestions that because of the illegal search and seizure, the Government's questions about the T-shirt were improper cross-examination. McLeroth testified that Havens had assisted him in preparing the T-shirt for smuggling. Havens, in his direct testimony, acknowledged McLeroth's prior testimony that the cocaine "was taped or draped around his body and so on" but denied that he had "ever engage[d] in that kind of activity with Mr. McLeroth. . . . " This testimony could easily be understood as a denial of any connection with McLeroth's T-shirt and as a contradiction of McLeroth's testimony. Quite reasonably, it seems to us, the Government on cross-examination called attention to his answers on direct and then asked whether he had anything to do with sewing the cotton swatches on McLeroth's T-shirt. This was cross-examination growing out of Havens' direct testimony; and, as we hold above, the ensuing impeachment did not violate Havens' constitutional rights. 32 We reverse the judgment of the Court of Appeals and remand the case to that court for further proceedings consistent with this opinion. 33 So ordered. 34 Mr. Justice BRENNAN, joined by Mr. Justice MARSHALL and joined in Part I by Mr. Justice STEWART and Mr. Justice STEVENS, dissenting. 35 The Court upholds the admission at trial of illegally seized evidence to impeach a defendant's testimony deliberately elicited by the Government under the cover of impeaching an accused who takes the stand in his own behalf. I dissent. Criminal defendants now told that prosecutors are licensed to insinuate otherwise inadmissible evidence under the guise of cross-examination no longer have the unfettered right to elect whether or not to testify in their own behalf. Not only is today's decision an unwarranted departure from prior controlling cases, but, regrettably, it is yet another element in the trend to depreciate the constitutional protections guaranteed the criminally accused. 36 * The question before us is not of first impression. The identical issue was confronted in Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), which determined contrary to the instant decision—that it was constitutionally impermissible to admit evidence obtained in violation of the Fourth Amendment to rebut a defendant's response to a matter first raised during the Government's cross-examination. Subsequently, Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), affirmed the introduction of unlawfully acquired evidence to impeach an accused's false assertions about previous conduct that had been offered during direct testimony. But Walder took pains to draw the distinction between its own holding and Agnello, noting that "the defendant [Walder] went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping [and untrue] claim that he had never dealt in or possessed any narcotics." 347 U.S., at 65, 74 S.Ct., at 356. In "shar[p] contras[t]," in Agnello, "the Government . . . tried to smuggle [the tainted evidence] . . . in on cross-examination," and "elicit[ed] the expected denial. . . ." 347 U.S., at 66, 74 S.Ct., at 356. 37 The Court's recent decisions have left Agnello undisturbed. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), allowed the government to use inadmissible uncounseled statements to impeach direct examination. So, too, Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), reaffirmed Harris in the context of impeachment of the defendant's direct testimony. Significantly, neither decision intimated that Agnello had lost vitality, or that the distinction emphasized by Walder had been effaced. 38 The Court's opinion attempts to discredit Agnello by casting a strawman as its holding, and then demolishing the pitiful scarecrow of its own creation. Specifically, the Court cites Agnello's quotation of language from Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), that "illegally seized evidence 'shall not . . . be used at all,' " ante, at 624, and then refers to the subsequent decisions that indeed permit limited use of that evidence for impeachment. But the actual principle of Agnello, as discerned by Walder, is that the Government may not employ its power of cross-examination to predicate the admission of illegal evidence. In other words, impeachment by cross-examination about—or introduction of—suppressible evidence must be warranted by defendant's statements upon direct questioning. That principle is not at all inconsistent with later cases holding that the defendant may not take advantage of evidentiary suppression to advance specific perjurious claims as part of his direct case. 39 Nor is it correct to read Agnello as turning upon the tenuity of the link between the cross-examination involved there and the subject matter of the direct examination. Ante, at 625. The cross-examination about Agnello's previous connection with cocaine was reasonably related to his direct testimony that he lacked knowledge that the commodity he was transporting was cocaine. 269 U.S., at 29-30, 46 S.Ct., at 5. For "[t]he possession by Frank Agnello of the can of cocaine which was seized tended to show guilty knowledge and criminal intent on his part . . .." Id., at 35, 46 S.Ct., at 7. Thus, the constitutional flaw found in Agnello was that the introduction of the tainted evidence had been prompted by statements of the accused first elicited upon cross-examination. And the case was so read in Walder v. United States. That decision specifically stated that a defendant "must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief." 347 U.S., at 65, 74 S.Ct., at 356. Since as a matter of the law of evidence it would be perfectly permissible to cross-examine a defendant as to his denial of complicity in the crime, the quoted passage in Walder must be understood to impose a further condition before the prosecutor may refer to tainted evidence—that is, some particular direct testimony by the accused that relies upon "the Government's disability to challenge his credibility." Ibid. 40 In fact, the Court's current interpretation of Agnello and Walder simply trivializes those decisions by transforming their Fourth Amendment holdings into nothing more than a constitutional reflection of the common-law evidentiary rule of relevance. 41 Finally, the rationale of Harris v. New York and Oregon v. Hass does not impel the decision at hand. The exclusionary rule exception established by Harris and Hass may be fairly easily cabined by defense counsel's willingness to forgo certain areas of questioning. But the rule prescribed by the Court in this case passes control of the exception to the Government, since the prosecutor can lay the predicate for admitting otherwise suppressible evidence with his own questioning. To be sure, the Court requires that cross-examination be "proper"; however, traditional evidentiary principles accord parties fairly considerable latitude in crossexamining opposing witnesses. See C. McCormick, Law of Evidence §§ 21-24 (2d ed. 1972).1 In practical terms, therefore, today's holding allows even the moderately talented prosecutor to "work in . . . evidence on cross-examination [as it would] in its case in chief . . .." Walder v. United States, 347 U.S., at 66, 74 S.Ct., at 356. To avoid this consequence, a defendant will be compelled to forgo testifying on his own behalf. 42 "[T]he Constitution guarantees a defendant the fullest opportunity to meet the accusation against him." Id., at 65, 74 S.Ct., at 356; see Harris v. New York, supra, at 229-230, 91 S.Ct., at 647 (BRENNAN, J., dissenting). Regrettably, surrender of that guarantee is the price the Court imposes for the defendant to claim his right not to be convicted on the basis of evidence obtained in violation of the Constitution.2 I cannot agree that one constitutional privilege must be purchased at the expense of another. II 43 The foregoing demonstration of its break with precedent provides a sufficient ground to condemn the present ruling unleashing, as it does, a hitherto relatively confined exception to the exclusionary rule. But I have a more fundamental difference with the Court's holding here, which culminates the approach taken in Harris v. New York, and Oregon v. Hass. For this sequence of decisions undercuts the constitutional canon that convictions cannot be procured by governmental lawbreaking. See Harris v. New York, 401 U.S., at 226-232, 91 S.Ct., at 646-49 (BRENNAN, J., dissenting); Oregon v. Hass, 420 U.S., at 724-725, 95 S.Ct., at 1222 (BRENNAN, J., dissenting). 44 " '[I]t is monstrous that courts should aid or abet the law-breaking police officer.' " Id., at 724, 95 S.Ct., at 1222, quoting Harris v. New York, supra, 401 U.S., at 232, 91 S.Ct., at 649 (BRENNAN, J., dissenting). And what is especially troubling about these cases is the mode of analysis employed by the Court. In each, the judgment that tainted evidence may be admitted has been bottomed upon a determination that the "incremental furthering" of constitutional ends would not be sufficient to warrant exclusion of otherwise probative evidence. Ante, at 267; see Oregon v. Hass, supra, 420 U.S., at 721, 95 S.Ct., at 1220; Harris v. New York, supra, 401 U.S., at 225, 91 S.Ct., at 645. 45 Of course, "[t]here is no gainsaying that arriving at the truth is a fundamental goal of our legal system." Ante, at 626. But it is also undeniable that promotion of that objective must be consonant with other ends, in particular those enshrined in our Constitution. I still hope that the Court would not be prepared to acquiesce in torture or other police conduct that "shocks the conscience" even if it demonstrably advanced the factfinding process. At any rate, what is important is that the Constitution does not countenance police misbehavior, even in the pursuit of truth. The processes of our judicial system may not be fueled by the illegalities of government authorities. See, e. g., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). 46 Nevertheless, the Court has undertaken to strike a "balance" between the "policies" it finds in the Bill of Rights and the "competing interes[t]" in accurate trial determinations. Ante, at 627. This balancing effort is completely freewheeling. Far from applying criteria intrinsic to the Fourth and Fifth Amendments, the Court resolves succeeding cases simply by declaring that so much exclusion is enough to deter police misconduct. Ante, at 626, 627; see Oregon v. Hass, supra, 420 U.S., at 721, 95 S.Ct., at 1220; Harris v. New York, supra, 401 U.S., at 225, 91 S.Ct., at 645; cf. Stone v. Powell, 428 U.S. 465, 486-489, 96 S.Ct. 3037, 3048-50, 49 L.Ed.2d 1067 (1976); United States v. Calandra, 414 U.S. 338, 350-352, 94 S.Ct. 613, 621-622, 38 L.Ed.2d 561 (1974). That hardly conforms to the disciplined analytical method described as "legal reasoning," through which judges endeavor to formulate or derive principles of decision that can be applied consistently and predictably. 47 Ultimately, I fear, this ad hoc approach to the exclusionary rule obscures the difference between judicial decisionmaking and legislative or administrative policymaking. More disturbingly, by treating Fourth and Fifth Amendment privileges as mere incentive schemes, the Court denigrates their unique status as constitutional protections. Yet the efficacy of the Bill of Rights as the bulwark of our national liberty depends precisely upon public appreciation of the special character of constitutional prescriptions. The Court is charged with the responsibility to enforce constitutional guarantees; decisions such as today's patently disregard that obligation. 48 Accordingly, I dissent. 1 Federal Rule of Evidence 611 does provide for limitation of the scope of cross-examination "to the subject matter of the direct examination and matters affecting the credibility of the witness." But even these constraints need not be adopted by the States, which are generally free to fashion their own rules of evidence. 2 Although evidence of prior inconsistent utterances or behavior may ostensibly be offered merely to attack a defendant's credibility by contradicting his trial testimony, such evidence can also serve to buttress the affirmative elements of the prosecution's case. Thus, almost any time an accused takes the stand, the prosecution will have an opportunity to enhance its case in chief. And it is unrealistic to assume that limiting instructions will afford the defendant significant protection. Cf. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

01

446 U.S. 657 100 S.Ct. 1932 64 L.Ed.2d 593 Cecil D. ANDRUS, Secretary of Interior, Petitioner,v.SHELL OIL COMPANY et al. No. 78-1815. Argued Jan. 15, 1980. Decided June 2, 1980. Syllabus The general mining law of 1872 permits citizens to explore the public domain and search for minerals and, if they discover "valuable mineral deposits," to obtain title to the land on which such deposits are located. The Mineral Leasing Act (Act), enacted in 1920, withdrew oil shale from the general mining law and provided that thereafter oil shale would be subject to disposition only through leases, except that a savings clause preserved valid claims existent at the date of passage of the Act. Upon complaints by the Department of the Interior (Department) alleging that respondents' claims for oil shale deposits located prior to the Act were invalid, a hearing examiner ruled the claims valid on the ground that the Department's 1927 decision in Freeman v. Summers, 52 L.D. 201, wherein it was held that "present marketability" is not a prerequisite to the patentability of oil shale deposits as "valuable mineral deposits," compelled the conclusion that oil shale is a valuable mineral subject to appropriation under the mining laws, despite substantial evidence that oil shale operations were commercially infeasible. The Board of Land Appeals reversed, holding that oil shale claims located prior to 1920 failed the test of value because at the time of location there did not appear as a present fact a reasonable prospect of success in developing an operating mine that would yield a reasonable profit. It rejected prior departmental precedent, particularly Freeman v. Summers, as being inconsistent with the general mining law and therefore unsound. On appeal, the District Court reversed and held the claims valid, finding that Congress had implicitly "ratified" the rule of Freeman v. Summers, and that in any event the Department was estopped from departing from the longstanding Freeman standard. The Court of Appeals affirmed. Held : The oil shale deposits in question are "valuable mineral deposits" patentable under the Act's savings clause. The Act's history and the developments subsequent to its passage indicate that the Government should not be permitted to invalidate pre-1920 oil shale claims by imposing a present marketability requirement on such claims. The Department's original position, as set forth in Instructions, issued shortly after the Act became law, authorizing the General Land Office to begin adjudicating applications for patents for pre-1920 oil shale claims, and later enunciated in Freeman v. Summers, is the correct view of the Act as it applies to the patentability of pre-1920 oil shale claims. Pp. 663-673. 591 F.2d 597, 10 Cir., affirmed. Lawrence G. Wallace, Washington, D.C., for petitioner. Fowler Hamilton, New York City, for respondents. Mr. CHIEF JUSTICE BURGER delivered the opinion of the Court. 1 The general mining law of 1872, 30 U.S.C. § 22 et seq., provides that citizens may enter and explore the public domain, and search for minerals; if they discover "valuable mineral deposits," they may obtain title to the land on which such deposits are located.1 In 1920 Congress altered this program with the enactment of the Mineral Leasing Act. 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. The Act withdrew oil shale and several other minerals from the general mining law and provided that thereafter these minerals would be subject to disposition only through leases. A savings clause, however, preserved "valid claims existent at date of the passage of this Act and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery."2 2 The question presented is whether oil shale deposits located prior to the 1920 Act are "valuable mineral deposits" patentable under the savings clause of the Act. 3 * The action involves two groups of oil shale claims located by claimants on public lands in Garfield County, Colo., prior to the enactment of the Mineral Leasing Act.3 The first group of claims, designated Mountain Boys Nos. 6 and 7, was located in 1918. In 1920, a business trust purchased the claims for $25,000, and in 1924 an application for patent was filed with the Department of the Interior. Some 20 years later, after extended investigative and adjudicatory proceedings, the patent was rejected "without prejudice" on the ground that it was not then vigorously pursued. In 1958, Frank W. Winegar acquired the claims and filed a new patent application. In 1964, Winegar conveyed his interests in the claims to respondent Shell Oil Company. 4 The second group of claims, known as Harold Shoup Nos. 1-4, was located in 1917. In 1923, the claims were acquired by Karl C. Schuyler who in 1933 bequeathed them to his surviving spouse. In 1960, Mrs. Schuyler incorporated respondent D. A. Shale, Inc., and transferred title to the claims to the corporation. Three months later, the corporation filed patent applications. 5 In 1964, the Department issued administrative complaints alleging that the Mountain Boys claims and the Shoup claims were invalid. The complaints alleged, inter alia, that oil shale was not a "valuable mineral" prior to the enactment of the 1920 Mineral Leasing Act. 6 The complaints were consolidated and tried by a hearing examiner who in 1970 ruled the claims valid. The hearing examiner observed that under established case law the test for determining a "valuable mineral deposit" was whether the deposit was one justifying present expenditures with a reasonable prospect of developing a profitable mine. See United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968); Castle v. Womble, 19 L.D. 455 (1894).4 He then reviewed the history of oil shale operations in this country and found that every attempted operation had failed to show profitable production. On the basis of this finding and other evidence showing commercial infeasibility, the hearing examiner reasoned that "[i]f this were a case of first impression," oil shale would fail the "valuable mineral deposit" test. However, he deemed himself bound by the Department's contrary decision in Freeman v. Summers, 52 L.D. 201 (1927). There, the Secretary had written: 7 "While at the present time there has been no considerable production of oil from shales, due to the fact that abundant quantities of oil have been produced more cheaply from wells, there is no possible doubt of its value and of the fact that it constitutes an enormously valuable resource for future use by the American people. 8 "It is not necessary, in order to constitute a valid discovery under the general mining laws sufficient to support an application for patent, that the mineral in its present situation can be immediately disposed of at a profit." Id., at 206. (Emphasis added.) 9 The hearing examiner ruled that Freeman v. Summers compelled the conclusion that oil shale is a valuable mineral subject to appropriation under the mining laws, and he upheld the Mountain Boys and Shoup claims as valid and patentable. 10 The Board of Land Appeals reversed. Adopting the findings of the hearing examiner, the Board concluded that oil shale claims located prior to 1920 failed the test of value because at the time of location there did not appear "as a present fact . . . a reasonable prospect of success in developing an operating mine that would yield a reasonable profit." (Emphasis in original.) The Board recognized that this conclusion was at odds with prior departmental precedent, and particularly with Freeman v. Summers ; but it rejected that precedent as inconsistent with the general mining law and therefore unsound. The Board then considered whether its newly enunciated interpretation should be given only prospective effect. It found that respondents' reliance on prior rulings was minimal and that the Department's responsibility as trustee of public lands required it to correct a plainly erroneous decision.5 Accordingly, it ruled that its new interpretation applied to the Mountain Boys and Shoup claims, and that those claims were invalid. 11 Respondents appealed the Board's ruling to the United States District Court for the District of Colorado. The District Court agreed with the Board that by not requiring proof of "present marketability" the decision in Freeman v. Summers had liberalized the traditional valuable mineral test. But it found that Congress in 1931 and again in 1956 had considered the patentability of oil shale and had implicitly "ratified" that liberalized rule. Alternatively, the District Court concluded that the Department was estopped now from departing from the Freeman standard which investors had "relied upon . . . for the past half-century." Shell Oil Co. v. Kleppe, 426 F.Supp. 894, 907 (1977). On these grounds, it reversed the Board's ruling and held that the claims at issue were valid. 12 The Court of Appeals for the Tenth Circuit affirmed. 591 F.2d 597 (1979). It agreed with the District Court that the "different treatment afforded all oil shale claims as to the 'valuable mineral deposit' element of a location became a part of the general mining laws by reason of its adoption and approval by both Houses of Congress" in the years after 1920. Id., at 604. And it held that the Department now must adhere to the Freeman rule. We granted certiorari because of the importance of the question to the management of the public lands. 444 U.S. 822, 100 S.Ct. 42, 62 L.Ed.2d 29 (1979). We affirm. II 13 The legislative history of the 1920 Mineral Leasing Act shows that Congress did not consider "present marketability" a prerequisite to the patentability of oil shale.6 In the extensive hearings and debates that preceded the passage of the 1920 Act, there is no intimation that Congress contemplated such a requirement; indeed, the contrary appears. During the 1919 floor debates in the House of Representatives, an amendment was proposed which would have substituted the phrase "deposits in paying quantities" for "valuable mineral." That amendment, however, was promptly withdrawn after Mr. Sinott, the House floor manager, voiced his objection to the change: 14 "Mr. SINOTT. That language was put in with a great deal of consideration and we would not like to change from 'valuable' to 'paying.' There is quite a distinction. We are in line with the decisions of the courts as to what is a discovery, and I think it would be a very dangerous matter to experiment with this language at this time." 58 Cong.Rec. 7537 (1919) (emphasis added). 15 An examination of the relevant decisions at the time underscores the point. Those decisions are clear in rejecting a requirement that a miner must "demonstrat[e] that the vein . . . would pay all the expenses of removing, extracting, crushing, and reducing the ore, and leave a profit to the owner," Book v. Justice Mining Co., 58 F. 106, 124 (CC Nev.1893), and in holding that "it is enough if the vein or deposit 'has a present or prospective commercial value.' " Madison v. Octave Oil Co., 154 Cal. 768, 772, 99 P. 176, 178 (1908) (emphasis added). Accord, Cascaden v. Bartolis, 146 F. 739 (CA9 1906); United States v. Ohio Oil Co., 240 F. 996, 998 (Wyo.1916); Montana Cent. R. Co. v. Migeon, 68 F. 811, 814 (CC Mont.1895); East Tintic Consolidated Mining Co., 43 L.D. 79, 81 (1914); 2 C. Lindley, American Law Relating to Mines and Mineral Lands § 336, pp. 768-769 (3d ed. 1914). See generally Reeves, The Origin and Development of the Rules of Discovery, 8 Land & Water L.Rev. 1 (1973). 16 To be sure, prior to the passage of the 1920 Act, there existed considerable uncertainty as to whether oil shale was patentable.7 That uncertainty, however, related to whether oil shale was a "mineral" under the mining law, and not to its "value." Similar doubts had arisen in the late 19th century in regard to petroleum. Indeed, in 1896 the Secretary of the Interior had held that petroleum claims were not subject to location under the mining laws, concluding that only lands "containing the more precious metals . . . gold, silver, cinnabar etc." were open to entry. Union Oil Co., 23 L.D. 222, 227. The Secretary's decision was short-lived. In 1897, Congress enacted the Oil Placer Act authorizing entry under the mining laws to public lands "containing petroleum or other mineral oils." Ch. 216, 29 Stat. 526. This legislation put to rest any doubt about oil as a mineral. But because oil shale, strictly speaking, contained kerogen and not oil, see n. 3, supra, its status remained problematic. See Reidy, Do Unpatented Oil Shale Claims Exist?, 43 Denver L. J. 9, 12 (1966). 17 That this was the nature of the uncertainty surrounding the patentability of oil shale claims is evident from remarks made throughout the hearings and debates on the 1920 Act. In the 1918 hearings, Congressman Barnett, for example, explained: 18 "Mr. BARNETT. . . . If the department should contend that shale lands come within the meaning of the term 'oil lands' they must perforce, by the same argument, admit that they are placer lands within the meaning of the act of 1897. 19 "The Chairman. And patentable? 20 "Mr. BARNETT. And patentable under that act." 21 Hearings, at 918. 22 The enactment of the 1920 Mineral Leasing Act put an end to these doubts. By withdrawing "oil shale . . . in lands valuable for such minerals" from disposition under the general mining law, the Congress recognized—at least implicitly—that oil shale had been a locatable mineral. In effect, the 1920 Act did for oil shale what the 1897 Oil Placer Act had done for oil. And, as Congressman Barnett's ready answer demonstrates, once it was settled that oil shale was a mineral subject to location, and once a savings clause was in place preserving pre-existing claims, it was fully expected that such claims would be patentable. The fact that oil shale then had no commercial value simply was not perceived as an obstacle to that end. III 23 Our conclusion that Congress in enacting the 1920 Mineral Leasing Act contemplated that pre-existing oil shale claims could satisfy the discovery requirement of the mining law is confirmed by actions taken in subsequent years by the Interior Department and the Congress.8 24 On May 10, 1920, less than three months after the Mineral Leasing Act became law, the Interior Department issued "Instructions" to its General Land Office authorizing that Office to begin adjudicating applications for patents for pre-1920 oil shale claims. The Instructions advised as follows: 25 "Oil shale having been thus recognized by the Department and by the Congress as a mineral deposit and a source of petroleum . . . lands valuable on account thereof must be held to have been subject to valid location and appropriation under the placer mining laws, to the same extent and subject to the same provisions and conditions as if valuable on account of oil or gas." 47 L.D. 548, 551 (1920) (emphasis added). 26 The first such patent was issued immediately thereafter. Five years later, the Department rules that patentability was dependent upon the "character, extent, and mode of occurrence of the oil-shale deposits." Dennis v. Utah, 51 L.D. 229, 232 (1925). Present profitability was not mentioned as a relevant, let alone a critical, consideration. 27 In 1927, the Department decided Freeman v. Summers, 52 L.D. 201. The case arose out of a dispute between an oil shale claimant and an applicant for a homestead patent, and involved two distinct issues: (1) whether a finding of lean surface deposits warranted the geological inference that the claim contained rich "valuable" deposits below; and (2) whether present profitability was a prerequisite to patentability. Both issues were decided in favor of the oil shale claimant: the geological inference was deemed sound and the fact that there was "no possible doubt . . . that [oil shale] constitutes an enormously valuable resource for future use by the American people" was ruled sufficient proof of "value." Id., at 206. 28 For the next 33 years, Freeman was applied without deviation.9 It was said that its application ensured that "valid rights [would] be protected and permitted to be perfected." Secretary of Interior Ann.Rep. 30 (1927). In all, 523 patents for 2,326 claims covering 349,088 acres were issued under theFreeman rule. This administrative practice, begun immediately upon the passage of the 1920 Act, "has peculiar weight [because] it involves a contemporaneous construction of [the] statute by the men charged with the responsibility of setting its machinery in motion," Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933). Accord, e. g., United States v. National Assn. of Securities Dealers, 422 U.S. 694, 719, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486 (1975); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). It provides strong support for the conclusion that Congress did not intend to impose a present marketability requirement on oil shale claims. B 29 In 1930 and 1931, congressional Committees revisited the 1920 Mineral Leasing Act and re-examined the patentability of oil shale claims. Congressional interest in the subject was sparked in large measure by a series of newspaper articles charging that oil shale lands had been "improvidently, erroneously, and unlawfully, if not corruptly, transferred to individuals and private corporations." 74 Cong.Rec. 1079 (1930) (S.Res. 379). The articles were based upon accusations leveled at the Interior Department by Ralph S. Kelly, then the General Land Office Division Inspector in Denver. Kelly's criticism centered on the Freeman v. Summers decision. Fearing another "Teapot Dome" scandal, the Senate authorized the Committee on Public Lands to "inquire into . . . the alienation of oil shale lands." 30 The Senate Committee held seven days of hearings focusing almost exclusively on "the so-called Freeman-Summers case." Hearings on S.Res. 379 before the Senate Committee on Public Lands and Surveys, 71st Cong., 3d Sess., 2 (1931). At the outset of the hearings, the Committee was advised by E. C. Finney, Solicitor, Department of the Interior, that 124 oil shale patents had been issued covering 175,000 acres of land and that 63 more patent applications were pending. Finney's statement prompted this interchange: 31 "Senator PITTMAN: Well, were the shales on those patented lands of commercial value? "Mr. FINNEY: If you mean by that whether they could have been mined and disposed of at a profit at the time of the patent, or now, the answer is no. 32 * * * * * 33 "Senator PITTMAN: So the Government has disposed of 175,000 acres in patents on lands which in your opinion there was no valid claim to in the locator? 34 "Mr. FINNEY: No; that was not my opinion. I have never held in the world, that I know of, that you had to have an actual commercial discovery of any commodity that you could take out and market at a profit. On the contrary, the department has held that that is not the case. . . ." Id., at 25 (emphasis added). 35 Later in the hearings Senator Walsh expressed his understanding of the impact of the Freeman decision: 36 "Senator WALSH: [It means] . . . that the prospector having found at the surface the layer containing any quantity of mineral, that is of oil-bearing shale or kerogen, that that would be a discovery in view of the beds down below of richer character. 37 "Mr. FINNEY: In this formation, yes sir; that is correct." Id., at 138. 38 See also id., at 22-23, 26, 163. The Senate Committee did not produce a report. But one month after the hearings were completed, Senator Nye, the Chairman of the Committee, wrote the Secretary of the Interior that he had " 'conferred with Senator Walsh and beg[ged] to advise that there is no reason why your Department should not proceed to final disposition of the pending application for patents to oil shale lands in conformity with the law.' " App. 103. The patenting of oil shale lands under the standards enunciated inFreeman was at once resumed. 39 At virtually the same time, the House of Representatives commenced its own investigation into problems relating to oil shale patents. The House Committee, however, focused primarily on the question of assessment work—whether an oil shale claimant was required to perform $100 work per year or forfeit his claim—and not on discovery. But the impact of the Freeman rule was not lost on the Committee: 40 "Mr. SWING. In furtherance of the policy of conservation, Mr. Secretary, in view of the fact that there has not been discovered, as I understand it, any practical economical method of extracting oil from the shale in competition with oil wells . . . would it not be proper public policy to withdraw all shale lands from private acquisition, since we are compelled to recognize, perforce, economic and fiscal conditions, that no one is going to make any beneficial use of the oil shale in the immediate future, but is simply putting it in cold storage as a speculative proposition? 41 "Secretary WILBUR: As a matter of conservation, what you say is true, but what we have to meet here is the fact that in the leasing act there was a clause to the effect that valid existing claims were not included, and so we are dealing with claims that are thought to be valid, and the question— 42 "Mr. SWING (interposing). I realize that, and I understand the feeling of Congress, and I think generally the country, that in drawing the law we do not want to cut the ground from under the person who has initiated a right." Consolidated Hearings on Applications for Patent on Oil Shale Lands before the House Committee on the Public Lands, 71st Cong., 3d Sess., 100 (1931).10 43 Congressman Swing's statement of the "feeling of Congress" comports with our reading of the 1920 statute and of congressional intent. To hold now that Freeman was wrongly decided would be wholly inconsistent with that intent. Moreover, it would require us to conclude that the Congress in 1930-1931 closed its eyes to a major perversion of the mining laws. We reject any such conclusion. C 44 In 1956 Congress again turned its attention to the patentability of oil shale. That year it amended the mining laws by eliminating the requirement that locators must obtain and convey to the United States existing homestead surfaceland patents in order to qualify for a mining patent on minerals withdrawn under the 1920 Mineral Leasing Act. See Pub.L. 743, 70 Stat. 592. Where a surface owner refused to cooperate with the mining claimant and sell his estate, this requirement prevented the mining claimant from patenting his claim. See James W. Bell, 52 L.D. 197 (1927). In hearings on the amendment, it was emphasized that oil shale claimants would be principal beneficiaries of the amendment: 45 "Mr. ASPINNAL. This [bill] does not have to do with any other minerals except the leaseable minerals to which no one can get a patent since 1920. . . . As far as I know, there are only just a few cases that are involved, and most of those cases are in the oil shale lands of eastern Utah and western Colorado. That is all this bill refers to." Hearings on H.R. 6501 before the House Committee on Interior and Insular Affairs 3-4 (1956). 46 See also Hearings on H.R. 6501 before the Subcommittee on Mines and Mining of the House Committee on Interior and Insular Affairs 4, 13-14, 16 (1956). The Reports of both Houses also evince a clear understanding that oil shale claimants stood to gain by the amendment: 47 "Under the Department of the Interior decision in the case of James W. Bell . . . the owner of a valid mining claim located before February 25, 1920, on lands covered by the 1914 act, in order to obtain a patent to the minerals, is required to acquire the outstanding interest of the surface owner and thereafter to execute a deed of reconveyance to the United States . . . . From 1946 to 1955, inclusive, 71 mining claims, including 67 oil shale claims, were issued under this procedure. The committee is informed that in a few cases mining claimants have been unable to obtain the cooperation of the owners of the surface estate and have been prevented thereby from obtaining patent to the mineral estate." S.Rep.No. 2524, 84th Cong., 2d Sess., 2 (1956); H.R.Rep.No. 2198, 84th Cong., 2d Sess., 2 (1956), U.S.Code Cong. & Admin.News, pp. 3391, 3392 (emphasis added). 48 The bill was enacted into law without floor debate. Were we to hold today that oil shale is a nonvaluable mineral we would virtually nullify this 1956 action of Congress. IV 49 The position of the Government in this case is not without a certain irony. Its challenge to respondents' pre-1920 oil shale claims as a "nonvaluable" comes at a time when the value of such claims has increased sharply as the Nation searches for alternative energy sources to meet its pressing needs. If the Government were to succeed in invalidating old claims and in leasing the lands at public auction, the Treasury, no doubt, would be substantially enriched. However, the history of the 1920 Mineral Leasing Act and developments subsequent to that Act persuade us that the Government cannot achieve that end by imposing a present marketability requirement on oil shale claims.11 We conclude that the original position of the Department of the Interior, enunciated in the 1920 Instructions and in Freeman v. Summers, is the correct view of the Mineral Leasing Act as it applies to the patentability of those claims.12 The judgment of the Court of Appeals is 50 Affirmed. 51 Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting. 52 Oil shale was patentable under the general mining law from 1872 until 1920.1 In 1920, Congress enacted the Mineral Leasing Act, 30 U.S.C. § 181 et seq. That legislation withdrew oil shale and certain other minerals from the general mining law, but preserved "valid claims existent at date of the passage of this Act and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery." Act of Feb. 25, 1920, ch. 85, § 37, 41 Stat. 451, as amended, 30 U.S.C. § 193. 53 The question presented in this case is whether oil shale claims brought under this saving clause of the Mineral Leasing Act must satisfy the usual standards of patentability, or instead may be patented through the use of a "discovery" standard different from that which generally applies. The Court's answer is that a different and more relaxed standard is applicable. I disagree. Since I believe that pre-1920 oil shale claims must fulfill the then firmly established requirements of patentability for all valuable minerals under the general mining law, I respectfully dissent from the opinion and judgment of the Court. A. 54 There is not one shred of evidence that Congress enacted the saving clause of the Mineral Leasing Act with the purpose of exempting oil shale claims from the usual requirements of patentability. On its face, the 1920 version of the provision applied with identical effect to "coal, phosphate, sodium, oil, oil shale, and gas," and required that all outstanding valid claims to such minerals meet the existing standards of the mining law in order to be perfected. 55 Nothing in the Act's legislative history suggests anything to the contrary. Descriptions by legislators of the saving clause drew no distinction between oil shale and other covered claims. See, e. g., 59 Cong.Rec. 2711-2712 (1920) (Rep. Taylor); 58 Cong.Rec. 7780-7781 (1919).2 In the face of conflicting evidence on the subject, Congress may well have thought that many oil shale claims would meet the traditional criteria of patentability. But it did not accord such claims any special legislative treatment. 56 Equally unambiguous are the Instructions which the Secretary of the Interior published three months after passage of the Act. These expressly stated: 57 "[L]ands valuable on account [of oil shale] must be held to have been subject to valid location and appropriation under the placer mining laws, to the same extent and subject to the same provisions and conditions as if valuable on account of oil or gas. Entries and applications for patent for oil shale placer claims will, therefore, be adjudicated . . . in accordance with the same legal provisions and with reference to the same requirements and limitations as are applicable to oil and gas placers." 47 L.D. 548, 551 (1920) (emphasis added). 58 Such a contemporaneous construction of the statute by the agency charged with its application is entitled to substantial weight. See United States v. National Assn. of Securities Dealers, 422 U.S. 694, 719, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486; Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616. B 59 The saving clause of the Mineral Leasing Act thus directs that the validity of all claims brought thereunder—including those relating to oil shale—must be judged according to the general criteria of patentability that were established in the mining law as of 1920. And I am convinced that nothing that Congress has done since 1920 can be read to have modified this mandate. 60 The Court points to congressional committee hearings that were held in 1931 on the Secretary's 1927 Freeman v. Summers decision, and notes that there resulted from this inquiry no legislative rejection of the Department's then prevailing generous treatment of oil shale claims. But of far greater significance, in my opinion, is the fact that not a single remark by a Senator or Representative, let alone by a congressional committee, can be found approving the liberal standard enunciated in Freeman v. Summers, 52 L.D. 201, even though such a statement could not, in any event, have overridden the plain meaning of the saving clause of the Mineral Leasing Act. See TVA v. Hill, 437 U.S. 153, 191-193, 98 S.Ct. 2279, 2299-2301, 57 L.Ed.2d 117; SEC v. Sloan, 436 U.S. 103, 121, 98 S.Ct. 1702, 1712-1714, 56 L.Ed.2d 148. 61 The Court purports to find support for its position in legislation enacted by Congress in 1956. But that legislation dealt with the totally unrelated problem of competing surface and mineral estates, and has nothing to do with the question at issue here. See Pub.L. 743, 70 Stat. 592; S.Rep.No. 2524, 84th Cong., 2d Sess. (1956); H.R.Rep.No. 2198, 84th Cong., 2d Sess. (1956). 62 The only reasonable inference that can be drawn from the events of 1931 and 1956 is that on those two occasions, as in 1920, Congress declined to assume that every pre-1920 oil shale claim would turn out to be unpatentable. It seems to me wholly fallacious to interpret these indications of caution as a congressional intent to exempt oil shale claims from longstanding principles of patentability. C 63 The respondents' patent applications were, I think, quite properly rejected at the administrative level for the simple reason that they failed to satisfy the requirements of the general mining law as of 1920. By 1920, the law was clear that a mineral land patent could issue only when the applicant had made a "discovery" of a "valuable mineral deposit." Union Oil Co. v. Smith, 249 U.S. 337, 346, 39 S.Ct. 308, 310, 63 L.Ed. 635 (1919). Through departmental and judicial decisions, it had been further established that a "discovery" occurs only when minerals are found in such quantity and quality as to justify a prudent man to expend his labor and means with a reasonable prospect of success in developing a valuable mine. Chrisman v. Miller, 197 U.S. 313, 321-323, 25 S.Ct. 468, 470-471, 49 L.Ed. 770 (1905); H. H. Yard, 38 L.D. 59, 70 (1909); Castle v. Womble, 19 L.D. 455, 457 (1894). See Cameron v. United States, 252 U.S. 450, 459, 40 S.Ct. 410, 412, 64 L.Ed. 659 (1920); Casey v. Northern Pacific R. Co., 15 L.D. 439, 440 (1892). 64 Of controlling significance here is the fact that, by 1920, two refinements of this "prudent man test" had occurred. First, it was clear that, although the patent applicant did not have to demonstrate that his mining efforts would definitely yield some profit,3 he at least had to show that they probably would. Cataract Gold Mining Co., 43 L.D. 248, 254 (1914). See Cole v. Ralph, 252 U.S. 286, 299, 40 S.Ct. 321, 327, 64 L.Ed. 567 (1920); Cameron v. United States, supra, at 459, 40 S.Ct., at 412; United States v. Iron Silver Mining Co., 128 U.S. 673, 684, 9 S.Ct. 195, 199, 32 L.Ed. 571 (1884).4 Second, this required showing of probable profitability had to rest primarily on presently demonstrable, not speculative, fact. See Davis's Administrator v. Weibbold, 139 U.S. 507, 521-524, 11 S.Ct. 628, 633-634, 35 L.Ed. 238 (1891); Castle v. Womble, supra, at 457 ("the requirement relating to discovery refers to present facts, and not to the probabilities of the future"); Casey v. Northern Pacific R. Co., supra, at 440; Winters v. Bliss, 14 L.D. 59, 62 (1892). Thus, the applicant could not satisfy the applicable standard by pointing to such highly uncertain future events as market changes or technological advances in an attempt to demonstrate a reasonable prospect of success. 65 Each of these principles had developed rather naturally out of the "prudent man" rule of Castle v. Womble, supra. For land to be deemed "valuable" for mining purposes, and for a prudent man to decide to expend his time and money in developing a mine upon that land, it was quite rational to require a showing of a reasonable prospect that the mine would yield a profit. See Cataract Gold Mining Co., supra, at 254. The Court is simply mistaken in suggesting that the general mining law was in any way otherwise in 1920. D 66 With respect to the oil shale deposits at issue in this case, the Board of Land Appeals found that they "never have been a valuable mineral deposit within the meaning of the general mining law." The Board based this conclusion on the following factual findings: 67 "First, as a historical fact, the commercial production of oil from oil shale has never been competitive with the liquid petroleum industry. Second, the hypothetical studies [in the record] at best confirm that the commercial exploitation of oil shale would not be competitive with the liquid petroleum industry. Third, without exception, every oil shale operation that has been attempted in this country has failed to show profitable production. Fourth, [the respondents] have held these claims for half a century without attempting to exploit them. 68 "It is unlikely that any oil shale operation could have operated at a profit at the time these claims were located or at any time up to and including the time of these contest proceedings. . . . 69 * * * * * 70 "In order for a commercially profitable operation to come into being there must be either a dramatic improvement in the technology or an alteration of the economic forces which have always operated in this country to prevent the commercial production of oil shale." 71 The Court of Appeals seemed to acknowledge that these findings were supported by substantial evidence, 591 F.2d 597, 598-599, but thought that a different standard of patentability is applicable to oil shale claims, and today this Court agrees with that view. 72 For the reasons stated, I do not agree. Accordingly, I would set aside the judgment of the Court of Appeals. 1 Discovery of a "valuable mineral" is not the only prerequisite of patentability. The mining law also provides that until a patent is issued a claimant must perform $100 worth of labor or make $100 of improvements on his claim during each year and that a patent may issue only on a showing that the claimant has expended a total of $500 on the claim. 30 U.S.C. §§ 28, 29. See Hickel v. Oil Shale Corp., 400 U.S. 48, 91 S.Ct. 196, 27 L.Ed.2d 193 (1970). In addition, a claim "must be distinctly marked on the ground so that its boundaries can be readily traced." 30 U.S.C. § 28; Kendall v. San Juan Silver Mining Co., 144 U.S. 658, 12 S.Ct. 779, 36 L.Ed. 583 (1892). If the requirements of the mining law are satisfied, the land may be patented for $2.50 per acre. 30 U.S.C. § 37. There is no deadline within which a locator must file for patent, though to satisfy the discovery requirement the claimant must show the existence of "valuable mineral deposits" both at the time of location and at the time of determination. Barrows v. Hickel, 447 F.2d 80, 82 (CA9 1971). 2 The savings clause is contained in § 37 of the Act, 41 Stat. 451, as amended, which, as set forth in 30 U.S.C. § 193, provides in full: "The deposits of coal, phosphate, sodium, potassium, oil, oil shale, and gas, herein referred to, in lands valuable for such minerals, including lands and deposits in Lander, Wyoming, coal entries numbered 18 to 49, inclusive, shall be subject to disposition only in the form and manner provided in this chapter, except as to valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery." 3 Oil shale is a sedimentary rock containing an organic material called kerogen which, upon destructive distillation, produces a substantial amount of oil. 4 In Chrisman v. Miller, 197 U.S. 313, 25 S.Ct. 468, 49 L.Ed. 770 (1905), this Court approved the Department of the Interior's "prudent-man test" under which discovery of a "valuable mineral deposit" requires proof of a deposit of such character that "a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine." Castle v. Womble, 19 L.D., at 457. Accord, Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335-336, 83 S.Ct. 379, 381-382, 9 L.Ed.2d 350 (1963); Cameron v. United States, 252 U.S. 450, 459, 40 S.Ct. 410, 412, 64 L.Ed. 659 (1920). In United States v. Coleman, the Court approved the Department's marketability test—whether a mineral can be "extracted, removed and marketed at a profit" deeming it a logical complement of the prudent-man standard. 5 The Board observed that "[a]lthough Shell . . . expended some $18,780 in perfecting title to and preparing patent application for the Mountain Boy claims before 1964, it did not purchase [the claims] from Frank Winegar for $30,000 [until] after initiation of the contest proceedings." And it found no evidence that D. A. Shale, Inc., or its predecessors had invested "more than a minimal amount" in the purchase of the Shoup claims in reliance on the Freeman decision. 6 Congress was aware that there was then no commercially feasible method for extracting oil from oil shale. The 1918 Report of the House Committee on the Public Lands, for example, had emphasized that "no commercial quantity or any appreciable amount of shale oil has ever been produced in this country, nor any standardized process of production has yet been evolved or recommended or agreed upon in this country by the Bureau of Mines or anyone else, and it has not yet been demonstrated that the oil-shale industry can be made commercially profitable. . . ." H.R.Rep.No. 563, 65th Cong., 2d Sess., 18 (1918). See also 58 Cong.Rec. 4271, 4279 (1919) (remarks of Sen. Smoot); Hearings on H.R. 3232 and S. 2812 before the House Committee on the Public Lands, 65th Cong., 2d Sess., 811, 890, 1257 (1918) (hereafter Hearings). 7 Mr. John Fry, one of the Committee witnesses who represented the oil shale interest before Congress, was candid on that point: "Mr. TAYLOR. There is a large amount of this shale land that has been located and is now held under the placer law. But none of it has yet gone to patent. "The Chairman. Has one acre of this land withdrawn in Colorado been patented? "Mr. FRY. No. "The Chairman. So you do not know what the holding of the department will be? "Mr. FRY. We do not." Hearings, at 912. See also id., at 626, 873, 913, 918, 1240, 1256-1257. 8 This Court has observed that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331, 4 L.Ed.2d 334 (1960). This sound admonition has guided several of our recent decisions. See, e. g., TVA v. Hill, 437 U.S. 153, 189-193, 98 S.Ct. 2279, 2299-2301, 57 L.Ed.2d 117 (1978); SEC v. Sloan, 436 U.S. 103, 119-122, 98 S.Ct. 1702, 1712-1714, 56 L.Ed.2d 148 (1978). Yet we cannot fail to note Mr. Chief Justice Marshall's dictum that "[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived." United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805). In consequence, while arguments predicated upon subsequent congressional actions must be weighed with extreme care, they should not be rejected out of hand as a source that a court may consider in the search for legislative intent. See, e. g., Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 814, 63 L.Ed.2d 36 (1980); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969); NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275, 94 S.Ct. 1757, 1761-1762, 40 L.Ed.2d 134 (1974). 9 See, e. g., John M. Debevoise, 67 L.D. 177, 180 (1960); United States v. C. E. Strauss, 59 I.D. 129, 140-142 (1945); Location of Oil Shale Placer Claims, 52 L.D. 631 (1929); Assessment Work on Oil-Shale Claims, 52 L.D. 334 (1928); Standard Shales Products Co., 52 L.D. 522 (1928); James W. Bell, 52 L.D. 197 (1927). 10 At the conclusion of its hearings, the Committee recommended legislation placing a deadline on the filing of patent applications for oil shale claims and permitting an oil shale claimant to pay $100 a year to the Land Office in lieu of $100 in annual assessment work. Other aspects of the oil shale patentability—including the question of discovery—were not addressed in the proposed legislation. H.R.Rep.No. 2537, 71st Cong., 3d Sess. (1931). The proposal was not enacted by the Congress. 11 This history indicates only that a present marketability standard does not apply to oil shale. It does not affect our conclusion in United States v. Coleman that for other minerals the Interior Department's profitability test is a permissible interpretation of the "valuable mineral" requirement. See n. 4, supra. 12 The dissent overlooks the abundant evidence that Congress since 1920 has consistently viewed oil shale as a "valuable mineral" under the general mining law. The dissent dismisses the 1931 hearings and the 1956 Act as irrelevancies: as for the 1931 hearings, the dissent states that "not a single remark by a Senator or Representative" approved the Freeman standard; as for the 1956 Act, we are informed that Congress "dealt with [a] totally unrelated problem." Post, at 676. Neither of these observations is correct. The 1931 Senate hearings were called specifically to review the Freeman case for fear that another "Teapot Dome" scandal was brewing. Rarely has an administrative law decision received such exhaustive Congressional scrutiny. And following that scrutiny, no action was taken to disturb the settled administrative practice; rather Senator Nye advised the Interior Department to continue patenting oil shale claims. Similarly, to characterize the 1956 Act as "totally unrelated" is to blink reality. The patentability of oil shale land was an essential predicate to that legislation; if oil shale land was nonpatentable then Congress performed a useless act. The dissent also overlooks that beginning in 1920 and continuing for four decades, the Interior Department treated oil shale as a "valuable mineral." In paying deference to the doctrine that a "contemporaneous [administrative] construction . . . is entitled to substantial weight," ante, at 676, the dissent ignores this contemporaneous administrative practice. The best evidence of the 1920 standard of patentability is the 1920 Interior Department practice on the matter. The suggestion of the dissent that "future events [such] as market changes" were not meaningful data under the Castle v. Womble test, post, at 678, is inaccurate. As a leading treatise has observed, "[t]he future value concept of Freeman v. Summers is nothing more than the 'reasonable prospect of success' of Castle v. Womble, and the reference to 'present facts' in Castle v. Womble . . . relates to the existence of a vein or lode and not to its value." 1 Rocky Mountain Mineral Law Foundation, American Law of Mining § 4.76, p. 697, n. 2 (1979). 1 Rev.Stat. § 2319 et seq., as amended, 30 U.S.C. § 22 et seq. See Union Oil Co. v. Smith, 249 U.S. 337, 345-346, 39 S.Ct. 308, 309-310, 63 L.Ed. 635. 2 The Court's discussion of a 1919 attempt to substitute "deposits in paying quantities" for "valuable mineral" in a provision of the prospective Mineral Leasing Act, and Representative Sinott's response thereto, see ante, at 663-664, has absolutely nothing to do with the issue at hand. The attempted substitution concerned a provision of the prospective Act that set out the circumstances under which exploratory permits would be allowed for oil and gas deposits under the new leasing scheme. See 58 Cong.Rec. 7536-7537 (1919). Thus, the legislative discussion quoted by the Court did not involve oil shale, the requirements of the general mining law, or the Act's saving clause. See id., at 7780-7781. 3 See East Tintic Consolidated Mining Co., 43 L.D. 79, 81-82 (1914). 4 See also Royal K. Placer, 13 L.D. 86, 89-90 (1891); Tinkham v. McCaffrey, 13 L.D. 517, 518 (1891). The authorities cited by the Court, ante, at 664, do not support a contrary rule. They state that an applicant for a mineral patent need not establish with certainty that a paying mine exists or can be developed on his land, but they do not in any way reject the rule of Castle v. Womble, 19 L.D. 455, 457 (1894), that the applicant must show that there exists a "reasonable prospect of success" in his developing a profitable mine. See Cascaden v. Bartolis, 146 F. 739, 741-742 (CA9 1906); United States v. Ohio Oil Co., 240 F. 996, 998-1004 (Wyo.1916); Montana Cent. R. Co. v. Migeon, 68 F. 811, 814-818 (CC Mont.1895); Book v. Justice Mining Co., 58 F. 106, 120, 123-125 (CC Nev.1893); Madison v. Octave Oil Co., 154 Cal. 768, 771-772, 99 P. 176, 178 (1908); 2 C. Lindley, American Law Relating to Mines and Mineral Lands § 336, pp. 768-773 (3d ed. 1914).

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446 U.S. 754 100 S.Ct. 1987 64 L.Ed.2d 670 Edward V. HANRAHAN et al.v.Iberia HAMPTON et al. Marlin JOHNSON et al. v. Iberia HAMPTON et al. Nos. 79-912, 79-914. June 2, 1980. Rehearings Denied Aug. 11, 1980. See 448 U.S. 913, 101 S.Ct. 33. PER CURIAM. 1 In the Civil Rights Attorney's Fees Awards Act of 1976, Congress amended 42 U.S.C. § 1988 to permit the award of a reasonable attorney's fee to the "prevailing party" as part of the taxable costs in a suit brought under any of several specified civil rights statutes. The respondents brought suit under three of those statutes in the United States District Court for the Northern District of Illinois, alleging that their constitutional rights had been violated by the petitioners, and seeking money damages from them.1 The District Court directed verdicts for the petitioners, but the Court of Appeals reversed and remanded the case to the District Court for a new trial, 600 F.2d 600. The Court of Appeals also awarded to the respondents their costs on appeal, including attorney's fees which it believed to be authorized by § 1988. Id., at 643-644.2 2 The final sentence of § 1988, as amended, provides as follows: 3 "In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. 4 The statute by its terms thus permits the award of attorney's fees only to a "prevailing party." Accordingly, in the present cases, the Court of Appeals was authorized to award to the respondents the attorney's fees attributable to their appeal only if, by reason of obtaining a partial reversal of the trial court's judgment, they "prevailed" within the meaning of § 1988. The Court of Appeals believed that they had prevailed with respect to the appeal in this case,3 resting its conclusion upon the following appellate rulings favorable to the respondents: (1) the reversal of the District Court's judgment directing verdicts against them, save with respect to certain of the defendants; (2) the reversal of the District Court's denial of their motion to discover the identity of an informant; and (3) the direction to the District Court on remand to consider allowing further discovery, and to conduct a hearing on the respondents' contention that the conduct of some of the petitioners in response to the trial court's discovery orders warranted the imposition of sanctions under Federal Rule of Civil Procedure 37(b)(2). While the respondents did prevail on these matters in the sense that the Court of Appeals overturned several rulings against them by the District Court, they were not, we have concluded, "prevailing" parties in the sense intended by 42 U.S.C. § 1988, as amended. 5 The legislative history of the Civil Rights Attorney's Fees Awards Act of 1976 indicates that a person may in some circumstances be a "prevailing party" without having obtained a favorable "final judgment following a full trial on the merits," H.R.Rep. No. 94-1558, p. 7 (1976). See also S.Rep. No. 94-1011, p. 5 (1976). Thus, for example, "parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief," ibid.; U.S.Code Cong. & Admin.News 1976, pp. 5908, 5912. See also H.R.Rep. No. 94-1558, supra, at 7, and cases cited; Dawson v. Pastrick, 600 F.2d 70, 78 (CA7 1979); Nadeau v. Helgemoe, 581 F.2d 275, 279-281 (CA1 1978). 6 It is evident also that Congress contemplated the award of fees pendente lite in some cases. S.Rep. No. 94-1011, supra, at 5; H.R.Rep. No. 94-1558, supra, at 7-8. But it seems clearly to have been the intent of Congress to permit such an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal. The congressional Committee Reports described what were considered to be appropriate circumstances for such an award by reference to two cases—Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), and Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). S.Rep. No. 94-1011, supra, at 5; H.R.Rep. No. 94-1558, supra, at 8. In each of those cases the party to whom fees were awarded had established the liability of the opposing party, although final remedial orders had not been entered. The House Committee Report, moreover, approved the standard suggested by this Court in Bradley, that " 'the entry of any order that determines substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees . . . ,' " H.R.Rep. No. 94-1558, supra, at 8, quoting Bradley v. Richmond School Board, supra, 416 U.S., at 723, n. 28, 94 S.Ct., at 2022, n. 28. Similarly, the Senate Committee Report explained that the award of counsel fees pendente lite would be "especially appropriate where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues." S.Rep. No. 94-1011, supra, at 5, U.S.Code Cong. & Admin.News 1976, p. 5912 (emphasis added). It seems apparent from these passages that Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the "substantial rights of the parties," which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney.4 7 The respondents have of course not prevailed on the merits of any of their claims. The Court of Appeals held only that the respondents were entitled to a trial of their cause.5 As a practical matter they are in a position no different from that they would have occupied if they had simply defeated the defendants' motion for a directed verdict in the trial court. The jury may or may not decide some or all of the issues in favor of the respondents. If the jury should not do so on remand in these cases, it could not seriously be contended that the respondents had prevailed. See Swietlowich v. Bucks County, 620 F.2d 33, 34 (CA3 1980). Nor may they fairly be said to have "prevailed" by reason of the Court of Appeals' other interlocutory dispositions, which affected only the extent of discovery. As is true of other procedural or evidentiary rulings, these determinations may affect the disposition on the merits, but were themselves not matters on which a party could "prevail" for purposes of shifting his counsel fees to the opposing party under § 1988. SeeBly v. McLeod, 605 F.2d 134, 137 (CA4 1979). 8 The motion of Fraternal Order of Police of the State of Illinois in case No. 79-912 for leave to file a brief, as amicus curiae, is granted. 9 The respondents' motions for leave to proceed in forma pauperis are granted, the petitions for certiorari are granted, limited to the question of the propriety of the award of attorney's fees by the Court of Appeals, and the judgment is reversed insofar as it awarded attorney's fees to the respondents. In all other respects, the petitions for certiorari are denied. 10 It is so ordered. 11 Mr. Justice STEVENS took no part in the consideration or decision of these cases. 12 Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, concurring in part and dissenting in part. 13 I join the Court's opinion insofar as it reverses the award of attorney's fees entered by the Court of Appeals for the Seventh Circuit. As I would grant the petition filed by the federal defendants in its entirety, I dissent from the denial of certiorari in No. 79-914.1 14 * This civil litigation arose in the aftermath of a 1969 police raid on a Chicago apartment occupied by nine members of the Black Panther Party, two of whom were killed. The surviving occupants of the apartment and the legal representatives of the deceased Black Panthers filed four actions for damages, now consolidated, against 28 state and federal law enforcement officials. The complaints allege numerous violations of constitutional rights. In particular, the plaintiffs claim that three agents assigned to the Federal Bureau of Investigation's Chicago office and an informant working with them (the federal defendants) conspired with state officers to carry out the operation, to conceal its allegedly sinister nature, and to harass the plaintiffs with unfounded prosecutions. 15 The jury trial lasted 18 months, generating a 37,000-page transcript and masses of documentary evidence. At the close of the plaintiffs' case, some 16 months after trial began, the District Court granted directed verdicts in favor of the federal and most of the state defendants. Trial continued as to the police officers who actually participated in the apartment incident. Ultimately, the jury deadlocked and the District Court entered a final judgment directing verdicts in favor of all of the defendants. A divided panel of the Court of Appeals vacated the judgment and ordered a new trial as to all but four of the defendants. 16 I have not reviewed the entire record of what is said to have been "the longest case tried to a jury in the history of the United States judiciary." Memorandum of District Court, App. to Pet. for Cert. in No. 79-914, p. 175a. I have, however, read with care the three separate opinions filed in the Court of Appeals as well as the District Court's extensive memorandum. Each judge agreed that the case against the federal defendants turns upon the sufficiency of the evidence regarding the alleged conspiracy. 17 At the close of the plaintiffs' case in chief, the District Court "reviewed all of the evidence . . . with all reasonable inferences that could be drawn therefrom, in the light most favorable to the plaintiffs." Id., at 186a. The court found the record "devoid of proof of . . . participation [by the federal defendants] in a conspiratorial plan among themselves or with the state defendants. Thus no liability on their part existed and their motions for directed verdicts were granted." Id., at 193a-194a. More specifically, the court explained: 18 "Each of the Federal defendants was called by plaintiffs as adverse witnesses. Each testified extensively and denied knowledge or [sic], or participation in, a plan, or an agreement, or a conspiracy between themselves, or between them or any of them, and any and all of the State defendants to violate plaintiffs' constitutional and statutory rights through conduct of the search of the apartment, or prior thereto, or after the occurrence, or otherwise. Their denials were uncontradicted and unimpeached by any testimony whatsoever." Id., at 189a-190a. 19 Despite the explicit findings of the judge who presided over this 18-month trial, a majority of the Court of Appeals drew its own inferences and concluded that the evidence was sufficient to "warrant a jury determination of whether a conspiracy existed." 600 F.2d 600, 621 (1979). The majority's lengthy opinion indicates that the court relied primarily, if not entirely, upon extensive testimony describing an FBI counterintelligence program directed against a number of organizations including the Black Panther Party. 20 There is no question that the FBI viewed that organization, which openly advocated armed resistance to authority and had a documented record of violence,2 as a serious threat to public safety and to the lives of law enforcement officers. But the issue at trial was not whether the FBI had a program designed to discredit the Black Panthers, or even whether the program had produced excesses. The only issue was whether these federal defendants conspired with state officers to conduct an unlawful search in which excessive force would be used or, subsequently, to harass the plaintiffs with malicious prosecutions. See id., at 648-649 (Fairchild, C. J., concurring). 21 No one contends that any of the federal defendants took part in the raid itself. They did supply information to state officers about illegal firearms stored in the apartment. But each federal defendant testified that he did not know of and did not participate in any planning or joint activity regarding the operation at any time. This uncontradicted testimony was fully corroborated by the state defendants. In these circumstances, inferences drawn from a program not shown to have been related to the events in question are of dubious value. Judge Pell, dissenting in part in the Court of Appeals, viewed the matter as follows: 22 "Going next to the . . . remaining state defendants and the federal defendants, I cannot agree that there was a basis for reasonable inferences that there was any kind of an agreement among them, express or implicit, to cause a raid to be made with the object of killing or wounding various Black Panther Party members. It is true that at the time in question, the federal authorities thought it would be in the public good to neutralize the Black Panther Party so that it could not carry out its avowed purpose, among others, of killing policemen. Indeed, the idea perhaps could have been entertained by some, if not all, of those defendants who were engaged in law enforcement work that the community would be a safer place for law-abiding citizens to live and work in if Fred Hampton and his cohorts were not on the scene. This human feeling is far removed from a basis for an inference that they deliberately set a course to accomplish that by violence. 23 "In our jurisprudence a person cannot be convicted of a traffic offense unless proven guilty beyond a reasonable doubt. Even though the present case is of the civil variety, I cannot believe that the law should permit a determination that any person has deliberately planned a homicide on nothing more than speculative conjecture or mere suspicion. The hard basic reasonable inference-creating facts just did not exist in this case." Id., at 660-661. 24 In the absence of positive evidence or "reasonable inference-creating facts," there was no reason to include the federal defendants in the remand for a second trial. II 25 This Court ordinarily leaves questions as to the sufficiency of evidence in a particular case to the courts below. But this is not ordinary litigation. Although it may appear on the surface to be an unexceptional civil rights suit for damages, the extraordinary magnitude of the litigation and the nature and scope of the evidence demonstrate that this lawsuit differs from the civil damages actions to which our courts are accustomed. 26 Judge Pell observed that "this case has important overtones of unbridled denigrating attacks on governmental officials." Id., at 666. The allegations of unconstitutional conduct by the state defendants are serious indeed, and I express no view on the merits of these claims. But the plaintiffs have a larger target: the Federal Bureau of Investigation. It is apparent that a basic trial strategy was to attack the FBI broadly. If there were sufficient relevant evidence to support the plaintiffs' claims, the law would require that they go to the jury regardless of underlying motive. Yet the presence of this collateral objective, related only tangentially if at all to the recovery of damages, imposed a special duty on the courts to bear in mind the admonition of Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978), that "federal officials [not be] harassed by frivolous lawsuits." 27 Butz rejected a claim that all highly placed federal officials should be absolutely immune from liability for civil rights violations. But federal officials, like state officials sued under 42 U.S.C. § 1983, have qualified immunity from suit. They therefore are liable only when they "discharge their duties in a way that is known to them to violate . . . a clearly established constitutional rule." 438 U.S., at 507, 98 S.Ct. at 2911. In Butz, we emphasized that absolute immunity is unnecessary to protect the public interest in "encouraging the vigorous exercise of official authority," id., at 506, because qualified immunity shields officials from liability for good-faith mistakes. We predicted that such immunity would prove "workable," because "firm application of the Federal Rules of Civil Procedure" would permit "[i]nsubstantial lawsuits [to] be quickly terminated." In particular, "damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment . . .." Id., at 507-508, 98 S.Ct., at 2911. The District Court heeded this admonition. 28 In reversing that court, the Court of Appeals misappreciated the premises on which this Court rested its ruling in Butz. In Butz, we endeavored to accommodate two important societal objectives: to compensate persons injured by civil rights violations, and to do so without discouraging vigorous enforcement of the laws. The first objective impelled the Court to reject absolute in favor of qualified immunity for most officials. We recognized, however, that our decision would invite litigation in which constitutional claims easily are asserted. We therefore cautioned the judiciary to exercise their authority under the rules of procedure in order to protect official defendants from groundless claims. Id., at 507, 98 S.Ct., at 2911. 29 Our concern in Butz was that extravagant charges might force officials to trial on claims that lacked a substantial basis in fact. In this case, there can be little speculation as to what evidence may be marshaled in support of the complaint. After 16 months of trial devoted exclusively to the plaintiffs' evidence, the trial court found the record wholly "devoid of proof of . . . participation" by the federal defendants in the conspiracy alleged. App. to Pet. for Cert. in No. 79-914, p. 193a. These defendants continue to assert that their conduct was a routine and good-faith effort at cooperative law enforcement. Neither the parties nor the courts below have identified concrete evidence to the contrary. If a new trial may be ordered in this case, similar allegations could survive properly supported motions for summary judgment on the basis of speculative inferences from unrelated evidence. The prospect of defending such lawsuits can hardly fail to "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949). III 30 The Court of Appeals' remand for a second trial as to the federal defendants in this case vitiates the protection we sought to insure in Butz. The effect on legitimate law enforcement efforts could be serious. At the least, these officers' experience is likely to discourage other federal officials from cooperating with state law enforcement agencies over which they have no control. I would grant the petition for certiorari. 31 Mr. Justice MARSHALL, dissenting. 32 It is not clear to me that the award of attorney's fees in this case was in error because "respondents have of course not prevailed on the merits of any of their claims." Ante, at 758. The Court concedes that Congress in passing the Civil Rights Attorney's Fees Awards Act of 1976 contemplated the award of attorney's fees pendente lite in certain instances, and that a litigant may be a "prevailing party" for purposes of the Act without obtaining final judgment on the merits following a full trial. It is sufficient if there has been a determination of " 'substantial rights of the parties,' " ante, at 757, quoting H.R.Rep. No. 94-1558, p. 8 (1976). 33 In the instant case, respondents have been successful in obtaining reversal on appeal of a directed verdict entered against them. While this "only" means that respondents are entitled to a trial of their cause, ante, at 758, that is a major accomplishment which determines "substantial rights of the parties." Had petitioners been successful in defending their directed verdict on appeal, there is no doubt that they would be considered to have prevailed on the merits; the lawsuit would have been finished. Obtaining an appellate order requiring that a new trial be held after an action to enforce civil rights has been prematurely terminated similarly is an achievement reflecting on the merits of the case. The decision of the Court of Appeals, establishing that respondents produced sufficient evidence to warrant sending their case to the jury, breathes new life into an otherwise dead lawsuit. Without full briefing and oral argument, I am unable to say that this does not fall within the category of legal victories which determine "substantial rights of the parties" for purposes of the Act. 34 In my view, the attorney's fees issue is sufficiently difficult to warrant the plenary attention of this Court rather than summary reversal. Accordingly, I dissent. 1 The controversy arose from the execution in 1969 of a judicial warrant to search for and seize illegal weapons within an apartment in Chicago occupied by nine members of the Black Panther Party. In the course of the search two of the apartment's occupants were killed by gunfire, and four others were wounded. The police seized various weapons and arrested the seven surviving occupants of the apartment. The survivors were indicted by a state grand jury on charges of attempted murder and aggravated battery, but the indictments ultimately were dismissed. Those seven persons and the legal representatives of the two persons killed are the respondents in these cases. Named as defendants in the respondents' suits were Cook County, the city of Chicago, and various state and local officials allegedly involved in the search or its aftermath. Those officials are the petitioners in No. 79-912. After proceedings in the District Court and the Court of Appeals resulted in the dismissal of the complaint against the city and the county, see Hampton v. Chicago, 339 F.Supp. 695 (N.D.Ill.1972), aff'd in part and rev'd in part, 484 F.2d 602 (CA7 1973), the respondents filed an amended complaint naming as additional defendants the three Federal Bureau of Investigation agents and an informant who are the petitioners in No. 79-914. The respondents based their claims on 42 U.S.C. §§ 1983, 1985(3) (1976 ed., Supp. II), and 1986, and on provisions of the Constitution. They also alleged various causes of action under state law. 2 In an unpublished supplemental opinion issued on December 12, 1979 (as amended December 21, 1979), fixing the amount of the fee award, the Court of Appeals reiterated its conclusion that the respondents were "prevailing parties" within the meaning of 42 U.S.C. § 1988. 3 The Court of Appeals recognized that the respondents had not "prevailed" in the District Court, and for that reason limited the award of counsel fees to those incurred by the respondents in the course of the appeal. 600 F.2d 600, 643-644. 4 The provision for counsel fees in § 1988 was patterned upon the attorney's fees provisions contained in Titles II and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k), and § 402 of the Voting Rights Act Amendments of 1975, 42 U.S.C. 1973l (e). S.Rep. No. 94-1011, p. 2 (1976); H.R.Rep. No. 94-1558, p. 5 (1976). Those provisions have been construed by the Courts of Appeals to permit the award of counsel fees only to a party who has prevailed on the merits of a claim. See Bly v. McLeod, 605 F.2d 134, 137 (CA4 1979) (Voting Rights Act); Chinese for Affirmative Action v. Leguennec, 580 F.2d 1006, 1009 (CA9 1978) (same); Grubbs v. Butz, 179 U.S.App.D.C. 18, 20-21, 548 F.2d 973, 975-976 (1976) (Title VII); Sperling v. United States, 515 F.2d 465, 485 (CA3 1975) (same). See also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418, 98 S.Ct. 694, 699, 54 L.Ed.2d 648 (1978) ("[W]hen a district court awards counsel fees [under the Civil Rights Act of 1964] to a prevailing plaintiff, it is awarding them against a violator of federal law"). But cf. Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (CA9 1974). In the cases cited by the Court of Appeals to justify the award of counsel fees in these cases, those to whom fees were awarded had prevailed on the merits of at least some of their claims. See Davis v. Murphy, 587 F.2d 362, 363-364 (CA7 1978); Nadeau v. Helgemoe, 581 F.2d 275, 279-281 (CA1 1978); Wharton v. Knefel, 562 F.2d 550, 556 (CA8 1977). 5 The Court of Appeals stated that, in reversing the directed verdicts, it was "not passing on the ultimate validity of [the respondents'] claims," 600 F.2d, at 621, n. 20. Indeed, Chief Judge Fairchild emphasized in his concurring opinion that the court's use of the phrase " 'prima facie' case" in referring to the evidence adduced by the respondents should not be taken to mean that at "any stage of this case . . . the evidence compelled a verdict for [the respondents] unless rebutted." Id., at 648. 1 I confine this dissent to the federal defendants, although it is not clear that the Court of Appeals properly reversed the directed verdicts as to many of the other defendants. See 600 F.2d 600, 649 (1979) (Pell, J., dissenting in part). 2 Summarizing evidence of record, Judge Pell's dissent described the party as an "extremist, paramilitary, uniformed organization . . .. It was a violent, revolutionary organization, which by party edict required its members to own and know how to use weapons and to have access to more than one weapon." Id., at 654. Judge Pell also noted that "Black Panther publications called for killing policemen," that the party "published a 'Destruction Kit' which described how to make and use incendiary bombs and other similar devices," that children attending its highly praised breakfast program were instructed to "Kill the Pigs," and that Black Panthers had "boasted" that one of their members had killed two Chicago police officers less than a month before the events at issue in this case. Id., at 654-655.

56